Filed 6/16/22 In re T.L. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Merced County. Donald J. Proietti, Judge.

Julie E. Braden, under appointment by the Court of Appeal, for Defendant and Appellant.

Forrest W. Hansen, County Counsel, and Jennifer Tran, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

Appellant Justin L. (father) is the father of T.L. (the child), who is the subject of a dependency case. Father challenges the juvenile court’s order terminating his parental rights at a Welfare and Institutions Code[1] section 366.26 hearing. Father’s sole claim is that the juvenile court and the Merced County Human Services Agency (agency) failed to comply with the inquiry provisions of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA). We affirm.

FACTUAL AND PROCEDURAL BACKGROUND[2]

On May 14, 2021, the child was taken into protective custody, shortly after his birth, as a result of his parents’ substance abuse and domestic violence problems, and prior history of neglect of the child’s siblings. The agency filed a petition alleging the child was at substantial risk of serious physical harm under section 300, subdivisions (b) and (j). Both parents were interviewed by an agency social worker regarding any potential Indian ancestry on the date the child was placed into protective custody, and both father and W.R (mother), the child’s mother, denied having any Indian ancestry.

At a detention hearing held on May 19, 2021, father was present and appointed counsel while mother did not appear. The report for the detention hearing indicated that the agency inquired about potential relative placement, and it was documented that there were no relatives to consider for placement. There were no extended family members referenced in the agency’s detention report or in attendance at the detention hearing.

The juvenile court acknowledged father’s prior statement to the agency that he did not believe he had any Indian ancestry. Then the court proceeded with an extensive list of questions during its own inquiry of father. The questions included the following inquiries as to whether: (1) father or any family members were members of an Indian tribe; (2) father or any family members received benefits for being considered Indian; (3) father or any family members ever attended an Indian boarding school; (4) father was born on an Indian reservation; (5) father held a certificate degree of Indian blood; (6) father was listed on any roll or census of Indian membership; (7) father spoke any Indian tribal language; (8) father participated in Indian tribal activities, such as an election; and (9) father participated in any Indian cultural activities, such as a powwow.

Father responded “no” to each of the juvenile court’s questions regarding possible Indian ancestry, and therefore, the juvenile court found that ICWA did not apply as to father. Although mother was not present, the juvenile court took judicial notice of prior dependency proceedings involving mother where it was found that ICWA was not applicable, and it found ICWA was not applicable in this matter. The court ordered the child detained from mother and father’s custody and set a jurisdiction hearing for June 17, 2021.

In a “Statement Regarding Parentage” (JV-505) form, filed by father on May 21, 2021, father requested that the juvenile court enter a judgment of parentage on his behalf. In support of his request, father indicated that he told the juvenile court, social worker, his father, sister, and friends that the child is his own. On June 1, 2021, father filed a “Parental Notification of Indian Status” form (ICWA-020), signed under penalty of perjury, which indicated that he had no Indian ancestry as far as he knew. The ICWA‑020 form filed by father contained the following instruction:

“To the parent, Indian custodian, or guardian of the above-named child: You must provide all the requested information about the child’s Indian status by completing this form. If you get new information that would change your answers, you must let your attorney, all the attorneys on the case, and the social worker or probation officer, or the court investigator know immediately and an updated form must be filed with the court.”

At a contested jurisdiction and disposition hearing on July 27, 2021, the juvenile court found that the child came within the provisions of section 300, subdivisions (b) and (j) after denying father’s request to continue the jurisdiction hearing. The disposition hearing was continued to August 31, 2021. The agency’s disposition report recommended that mother and father be denied reunification services pursuant to section 361.5, subdivision (b)(10) and (11) and a section 366.26 hearing be set.

The social study section of the report described father’s family connections and support system as including his sister, grandmother, aunt, and cousins. The only individual identified by father as a potential placement option was a family friend, and father failed to provide contact information for the friend. The child remained placed in a resource family home. After hearing testimony from father and argument from counsel during the contested disposition hearing, the juvenile court adopted the agency’s recommendation to deny reunification services and set a section 366.26 hearing for December 16, 2021.

The report for the section 366.26 hearing recommended that parental rights for mother and father be terminated and a plan of adoption be selected. The child remained placed in the same resource family home since removal and no relatives were identified for placement. The juvenile court’s previous finding from May 19, 2021, regarding ICWA was noted with no new information provided. On February 8, 2022, father was present at the contested section 366.26 hearing while mother failed to appear. Father testified and his counsel requested that the juvenile court order a permanent plan other than adoption. The juvenile court found the child was likely to be adopted and proceeded to terminate the parental rights of mother and father.

DISCUSSION

Father contends the juvenile court’s finding that ICWA did not apply was not supported by sufficient evidence because the record does not include interviews conducted by the agency with paternal family members regarding Indian ancestry. Father argues that despite his own denial of Indian ancestry at the detention hearing, the agency failed to conduct further inquiry of his extended family members regarding any potential Indian ancestry and thus, failed to discharge its affirmative and continuing duty of inquiry.

1. Legal Principles

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, except in emergencies, must follow before removing an Indian child from his or her family. (25 U.S.C. § 1902; see In re Isaiah W. (2016) 1 Cal.5th 1, 7–8.) In any “proceeding for the foster care placement of, or termination of parental rights to, an Indian child, the Indian custodian of the child and the Indian child’s tribe … have a right to intervene” (25 U.S.C. § 1911(c)), and may petition the court to invalidate any foster care placement of an Indian child made in violation of ICWA (25 U.S.C. § 1914; see § 224.2, subd. (e)). An “Indian child” is defined in ICWA as an unmarried individual under 18 years of age who is either (1) a member of a federally recognized Indian tribe, or (2) is eligible for membership in a federally recognized tribe and is the biological child of a member of a federally recognized tribe. (25 U.S.C. § 1903(4) & (8); see § 224.1, subd. (a) [adopting federal definitions].)

In every dependency proceeding, the agency and the juvenile court have an “affirmative and continuing duty to inquire whether a child is or may be an Indian child .…” (Cal. Rules of Court, rule 5.481(a); see also § 224.2, subd. (a); In re W.B. (2012) 55 Cal.4th 30, 53; In re Gabriel G. (2012) 206 Cal.App.4th 1160, 1165.) The continuing duty to inquire whether a child is or may be an Indian child “can be divided into three phases: the initial duty to inquire, the duty of further inquiry, and the duty to provide formal ICWA notice.” (In re D.F. (2020) 55 Cal.App.5th 558, 566.)

The initial duty to inquire arises at the referral stage when the reporting party is asked whether it has “any information that the child may be an Indian child.” (§ 224.2, subd. (a).) Once a child is received into temporary custody, the initial duty to inquire includes asking the child, parents, legal guardian, extended family members, and others who have an interest in the child whether the child is, or may be, an Indian child. (§ 224.2, subd. (b); § 306, subd. (b).) The juvenile court has a duty at the first appearance of each parent to ask whether he or she “knows or has reason to know that the child is an Indian child.” (§ 224.2, subd. (c).) The court must also require each parent to complete an ICWA-020 form. (Cal. Rules of Court, rule 5.481(a)(2)(C).)

B. Standard of Review

A juvenile court’s finding that ICWA is inapplicable is reviewed under the substantial evidence standard. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430.) Thus, we must uphold the juvenile court’s orders and findings if any substantial evidence, contradicted or uncontradicted, supports them, and we must indulge all legitimate inferences in favor of affirmance. (In re John V. (1992) 5 Cal.App.4th 1201, 1212.)

C. Analysis

In the present case, father informed the social worker who took the child into protective custody that he had no Indian ancestry. Afterwards, the juvenile court directly and extensively inquired of father as to whether he had any Indian ancestry. Father denied having any Indian ancestry both expressly to the juvenile court and in the ICWA‑020 form that he later submitted. Despite these facts, father now suggests that the initial inquiry was inadequate absent specific documentation that the agency attempted to locate or interview paternal relatives regarding potential Indian ancestry.

As an initial matter, we will address father’s suggestion that the juvenile court’s failure to instruct the parties that they must inform the juvenile court if they subsequently receive information that provides reason to know the child is an Indian child pursuant to section 224.2, subdivision (c) constitutes reversible error. We find no prejudice resulted due to the lack of such an instruction where father’s ICWA-020 form explicitly advised him of the need to submit a new form if he subsequently discovered any such information, and there was never any information provided to trigger a duty of further inquiry.

Turning to father’s primary contention, despite the lack of evidence in the record that paternal relatives were available to the agency during its initial inquiry, father argues that the lack of interviews with paternal relatives rendered the agency’s inquiry inadequate. Father cites to the case of In re Antonio R. (2022) 76 Cal.App.5th 421, 430 (Antonio R.), which expressly held it was prejudicial error for the agency not to inquire of extended family members. However, in that case the appellate court found prejudicial error because there were available or readily available extended family members that the agency failed to inquire of. (Id. at p. 431)

In Antonio R., the juvenile court found ICWA did not apply based on mother, father, and paternal great-grandmother’s denials of Indian ancestry, but there were still known and available extended family members that the agency could have contacted to inquire about possible Indian ancestry. (In re Antonio R., supra, 76 Cal.App.5th at p. 431.) Specifically, the maternal grandmother was interviewed by the agency prior to the detention hearing, the child was later placed with the maternal grandmother, and multiple maternal relatives were present at the disposition hearing. (Ibid.) None of those identified and readily available relatives were questioned regarding potential Indian ancestry. (Ibid.) On appeal, the court found the error prejudicial. (Id. at p. 426.) Antonio R. is distinguishable from the present case because there is no evidence in the record that paternal relatives were present during the child’s initial removal, attended hearings in the matter, or were even considered for placement of the child.

Father’s reliance upon In re Benjamin M. (2021) 70 Cal.App.5th 735 is similarly unpersuasive. In Benjamin M., one parent was not available to report or deny Indian heritage, and the agency never inquired of any of the missing parent’s available relatives. (Id. at pp. 744–745.) Here, there is no evidence that father provided the agency with the actual names or contact information of his own relatives that he now claims should have been interviewed, which differs significantly from Benjamin M. where the mother was challenging the child welfare agency’s failure to interview paternal relatives that the agency either directly spoke to or had obtained an address for. (Ibid.)

In support of his claim of error, father also cites to In re Y.W. (2021) 70 Cal.App.5th 542, 554. The case of In re Y.W. involved a mother who was adopted at the age of two by unrelated adoptive parents from whom she was estranged, and who had no contact with her biological parents. (Id. at p. 548.) Our present facts are readily distinguishable given the fact that father was not estranged from the family he casually referred to in title only as “connections” and “support” after the initial inquiry was completed.

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” (Antonio R., supra, 76 Cal.App.5th at p. 430), the court and agency often cannot satisfy this duty without participation from the parents. Given father’s earlier failure to provide contact information for his only identified placement option for the child, it is unlikely that he provided any meaningful information regarding his relatives that made them available to the agency. (See In re I.J. (2013) 56 Cal.4th 766, 773 [“we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court’s determinations”].) Without information from father, the agency had no leads to pursue.

In the present case, the agency had no duty to locate or interview paternal relatives without having a reason to believe the child might be an Indian child and knowledge that available paternal relatives had meaningful information regarding claimed Indian ancestry. (See, e.g., In re Michael V. (2016) 3 Cal.App.5th 225, 233 [Department made no effort to locate and interview children’s maternal grandmother “even though it was she who reportedly had the direct link to a tribe”].) “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.) “[T]he obligation is only one of inquiry and not an absolute duty to ascertain or refute Native American ancestry.” (In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1413.)

Therefore, the juvenile court’s finding regarding ICWA is supported by substantial evidence based upon the record of both the juvenile court and agency’s adequate inquiry.

A remand for inquiry would be an empty formality, a waste of judicial resources, and detrimental to the child’s interests in stability. (In re Rebecca R., supra, 143 Cal.App.4th at p. 1431 [“Parents unable to reunify with their children have already caused the children serious harm; the rules do not permit them to cause additional unwarranted delay and hardship, without any showing whatsoever that the interests protected by the ICWA are implicated in any way.”].) Accordingly, father’s claim that the termination order should be conditionally reversed is without merit.

DISPOSITION

The order appealed from is affirmed.

* Before Levy, Acting P. J., Smith, J. and Snauffer, J.

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

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