Opinion
E074493
06-30-2020
In re M.M. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. D.M. et al., Defendants and Appellants.
Lauren K. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant D.M. Terence M. Chucas, under appointment by the Court of Appeal, for Defendant and Appellant C.M. Michelle D. Blakemore, County Counsel, and Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.Nos. J269987 & J269988) OPINION APPEAL from the Superior Court of San Bernardino County. Erin K. Alexander, Judge. Affirmed. Lauren K. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant D.M. Terence M. Chucas, under appointment by the Court of Appeal, for Defendant and Appellant C.M. Michelle D. Blakemore, County Counsel, and Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.
The juvenile court terminated the parental rights of defendants and appellants, D.M. (father) and C.M. (mother) (collectively parents), as to M.M. and Z.M. (minors). On appeal, parents contend the court erred in finding the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.; ICWA) did not apply. We affirm.
I. FACTS AND PROCEDURAL HISTORY
On March 11, 2017, social workers responded to an immediate response referral regarding allegations of severe neglect and physical abuse to the infant E.M. by mother. Mother reported that "she laid [E.M.] down for a nap" between 8:00 and 8:30 p.m., "while she made dinner" for her four children. She sent one of her other children, A.C., to check on E.M. between 10:00 and 10:30 p.m. A.C. reported E.M. was nonresponsive. Mother called 911 and "attempted to perform CPR, but indicated that she was very nervous and that she may have forgotten all of the steps." First responders reported E.M. had already gone into rigor mortis when they arrived. A coroner's investigator reported that E.M. was dirty, smelled foully, and was covered in what appeared to be insect or animal bites. There were several old and healing scars on and around his head. A.C., M.M., and Z.M. were taken into protective custody. Each of them had a noticeable body odor and were unkempt. Mother reported father was incarcerated awaiting trial on charges of domestic violence.
This appeal does not pertain to A.C. or E.M.
Plaintiff and respondent, San Bernardino County Children and Family Services (CFS), filed juvenile dependency petitions as to the minors alleging father had failed to adequately supervise them (b-1), both parents had engaged in domestic violence in the presence of the minors (b-2, b-3), the minors' sibling (E.M.) had been found dead due to mother's failure to provide adequate care (f-4), and father was incarcerated (g-5). On March 15, 2017, mother filed a parental notification of Indian status reflecting that it was possible she might be a member of an Indian tribe, she might be eligible for membership in an Indian tribe, and she might have Indian ancestry. She further stated that the minors might be members of an Indian tribe, they might be eligible for membership in an Indian tribe, and her ancestors might be or have been members of the Navajo tribe. Father indicated he had no Indian ancestry insofar as he was aware.
At the detention hearing, mother indicated she had Navajo ancestry on her maternal grandmother's side. The court took down mother's maiden name, date of birth, and place of birth. The court also took down the grandmother's name, date of birth, and place of birth. The court further took down the great-grandmother and great-grandfather's names. Father indicated he had no Indian heritage. The court detained the minors.
In a report filed March 30, 2017, the social worker recommended father receive reunification services but mother be denied reunification services pursuant to Welfare and Institutions Code section 361.5, subdivision (b)(4) (the parent caused the death of another child through abuse or neglect). The probable cause of death as to E.M. was listed as homicide resulting from mother's failure to adequately care for and supervise him. On April 4, 2017, CFS personnel filed amended juvenile dependency petitions alleging father had substance abuse issues (b-4) and suffered from mental health issues (b-5), and that the minors' sibling's cause of death was homicide (f-6).
On May 24, 2017, CFS personnel filed an ICWA declaration of due diligence reflecting notification. On July 20, 2017, CFS personnel filed an ICWA declaration of due diligence with responses. At the jurisdiction and disposition hearing on August 29, 2017, the court found the allegations as amended true, removed the minors from parents, ordered reunification services for father, and denied services to mother.
On September 8, 2017, CFS personnel filed a final ICWA declaration of due diligence. The juvenile court found that 65 days had expired since ICWA notice had been received by the BIA, the Secretary of the Interior, and indicated tribes, and that no affirmative responses of tribal membership had been received by the court. The court then ordered that ICWA did not apply to the case, and no further notice was required.
In the status review report filed April 24, 2018, the social worker indicated that ICWA did or may apply. Mother reported that she believed the maternal great-great-grandfather had Native American ancestry. On January 23, 2018, the maternal grandmother provided the social worker with the maternal great-great-grandfather's name, date of birth, birthplace, date of death, and place of death. The social worker provided the information to a CFS ICWA noticing clerk to complete ICWA noticing.
In the status review report filed on September 6, 2018, the social worker reiterated the information regarding mother's purported Indian heritage recounted in a report dated April 24, 2018. On November 13, 2018, the court terminated father's reunification services. In another report filed May 8, 2019, the social worker again reported the same information regarding mother's alleged Indian heritage recounted in the April 24 and September 6, 2018 reports.
On August 14, 2019, the court set a Welfare and Institutions Code section 366.26 hearing. Father filed notices of intent to file petitions for extraordinary writs, which this court dismissed on September 25, 2019, for failure to timely file the writ petitions. On January 13, 2020, the juvenile court terminated parents' parental rights to the minors.
II. DISCUSSION
Parents contend the court erred in failing to require CFS to fulfill its obligation to provide further ICWA notice based on mother and grandmother's later reports of Indian ancestry through the maternal great-great-grandfather and his pertinent information. CFS concedes the matter should be remanded for further ICWA notice and findings. We disagree.
"ICWA established minimum standards for state courts to follow before removing Indian children from their families and placing them in foster care or adoptive homes. [Citations.] In 2006, California adopted various procedural and substantive provisions of ICWA. [Citation.] In 2016, new federal regulations were adopted concerning ICWA compliance. [Citation.] Following the enactment of the federal regulations, California made conforming amendments to its statutes, including portions of the Welfare and Institutions Code related to ICWA notice and inquiry requirements. [Citations.] Those changes became effective January 1, 2019 . . . , and govern here." (In re D.S. (2020) 46 Cal.App.5th 1041, 1048 (D.S.).) The new statute defines the actions necessary to determine a child's possible status as an Indian child.
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); accord, Welf. & Inst. Code, § 224.1, subd. (a) [adopting the federal standard].) "Being an 'Indian child' is thus not necessarily determined by the child's race, ancestry, or 'blood quantum,' but depends rather 'on the child's political affiliation with a federally recognized Indian Tribe.'" (In re Austin J. (2020) 47 Cal.App.5th 870, 882 (Austin J.), italics added.)
"ICWA itself does not impose a duty on courts or child welfare agencies to inquire as to whether a child in a dependency proceeding is an Indian child. [Citation.] Federal regulations implementing ICWA, however, require that state courts 'ask each participant in an emergency or voluntary or involuntary child-custody proceeding whether the participant knows or has reason to know that the child is an Indian child.' [Citation.] The court must also 'instruct the parties to inform the court if they subsequently receive information that provides reason to know the child is an Indian child.'" (Austin J., supra, 47 Cal.App.5th at pp. 882-883.)
Since states may provide "a higher standard of protection to the rights of the parent or Indian custodian of an Indian child than the rights provided under" ICWA (25 U.S.C. § 1921), under California law, the court and the county welfare department have an "affirmative and continuing duty to inquire" whether a child in dependency proceedings "is or may be an Indian child." (Welf. & Inst. Code, § 224.2, subd. (a) ["The duty to inquire [whether a child is or may be an Indian child] begins with the initial contact."]; Cal. Rules of Court, rule 5.481(a); see In re Isaiah W. (2016) 1 Cal.5th 1, 14.)
Welfare and Institutions Code former section 224.3 (Stats. 2006, ch. 838, § 32) was renumbered as section 224.2, effective January 1, 2019 (Stats. 2018, ch. 833, § 5).
Initially, the county welfare department 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." (Welf. & Inst. Code, § 224.2, subd. (b).) At the parties' first appearance before the juvenile court, the court must 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), italics added) and "[o]rder the parent . . . to complete Parental Notification of Indian Status ([Cal. Judicial Council] form ICWA-020)." (Cal. Rules of Court, rule 5.481(a)(2)(C), italics omitted.)
When there exists a reason to believe that an Indian child is involved, the social worker must "make further inquiry regarding the possible Indian status of the child." (Welf. & Inst. Code, § 224.2, subd. (e).) "The Legislature, which added the 'reason to believe' threshold for making a further inquiry in 2018, did not define the phrase. When that threshold is reached, the requisite 'further inquiry' 'includes: (1) interviewing the parents and extended family members; (2) contacting the Bureau of Indian Affairs and State Department of Social Services; and (3) contacting tribes the child may be affiliated with, and anyone else, that might have information regarding the child's membership or eligibility in a tribe.'" (Austin J., supra, 47 Cal.App.5th at p. 883, italics added; see § 224.2, subd. (e)(1)-(3); Cal. Rules of Court, rule 5.481(a)(4)(A)-(C).)
The term "extended family member" is defined as "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); accord, Welf. & Inst. Code, § 224.1, subd. (c).)
"In addition to the inquiry that is required in every dependency case from the outset and the 'further inquiry' required under California law when there is a 'reason to believe' an Indian child is involved, a third step—notice to Indian tribes—is required under ICWA and California law if and when 'the court knows or has reason to know that an Indian child is involved . . . .' [Citations.]
"The duty to provide notice is narrower than the duty of inquiry. Although the duty of inquiry applies to every 'child for whom a petition under Section 300, 601, or 602 may be or has been filed' [citation], and the duty of further inquiry applies when there is a 'reason to believe that an Indian child is involved in a proceeding' [citation], the duty to provide notice to Indian tribes applies only when one knows or has a 'reason to know . . . an Indian child is involved,' and only 'for hearings that may culminate in an order for foster care placement, termination of parental rights, preadoptive placement, or adoptive placement.'" (Austin J., supra, 47 Cal.App.5th at pp. 883-884, italics added.)
Effective January 1, 2019, the Legislature redefined the "reason to know" requirement that triggers the duty to give notice of the proceedings to Indian tribes. (In re A.M. (2020) 47 Cal.App.5th 303, 316 (A.M.), italics added; see Welf. & Inst. Code, § 224.3; Stats. 2018, ch. 833, §§ 4-7.) Before January 1, 2019, a "reason to know" could be based on "information suggesting the child is a member of a tribe or eligible for membership in a tribe or one or more of the child's biological parents, grandparents, or great-grandparents are or were a member of a tribe." (Welf. & Inst. Code, former § 224.3, subd. (b)(1), italics added; Stats. 2006, ch. 838, § 32.) As of January 1, 2019, the mere suggestion of eligibility for membership as to the child—or the mere suggestion of membership as to the parents, grandparents, or great-grandparents—no longer provides a reason to know that the court is dealing with an Indian child. (Welf. & Inst. Code, § 224.2, subd. (d).) Now, the amended statute declares that there is reason to know an Indian child is involved if, for instance, "[a] person having an interest in the child . . . informs the court that the child is an Indian child." (§ 224.2, subd. (d)(1).) The changes to the statute conform the definition of "reason to know" to the definition in federal regulations promulgated in 2016. (25 C.F.R. § 23.107(c); see A.M., supra, 47 Cal.App.5th at p. 316.)
Welfare and Institutions Code section 224.2, subdivision (d), describes six circumstances providing a reason to know an Indian child is involved: "(1) A person having an interest in the child, including the child, an officer of the court, a tribe, an Indian organization, a public or private agency, or a member of the child's extended family informs the court that the child is an Indian child. [¶] (2) The residence or domicile of the child, the child's parents, or Indian custodian is on a reservation or in an Alaska Native village. [¶] (3) Any participant in the proceeding, officer of the court, Indian tribe, Indian organization, or agency informs the court that it has discovered information indicating that the child is an Indian child. [¶] (4) The child who is the subject of the proceeding gives the court reason to know he or she is an Indian child. [¶] (5) The court is informed that the child is or has been a ward of a tribal court. [¶] (6) The court is informed that either parent or the child possess an identification card indicating membership or citizenship in an Indian tribe."
"In defining the 'reason to know' standard as a reason to know that a child 'is an Indian child,' the BIA expressly denied requests for more inclusive language, such as, '"is or could be an Indian child"' or '"may be an Indian child."' [Citation.] In rejecting the broader phrases, the BIA pointed to concerns that such language would cause 'undue delay, especially when a parent has only a vague notion of a distant [t]ribal ancestor.' [Citations.] Indeed, tribal ancestry is not among the criteria for having a reason to know the child is an Indian child." (Austin J., supra, 47 Cal.App.5th at p. 885.)
"On appeal, we review the juvenile court's ICWA findings for substantial evidence. [Citations.] But where the facts are undisputed, we independently determine whether ICWA's requirements have been satisfied." (D.S., supra, 46 Cal.App.5th at p. 1051.)
Here, although the court had already determined that ICWA did not apply to the case, the social worker later obtained information from mother and the maternal grandmother that the maternal great-great-grandfather purportedly had Indian heritage. The maternal grandmother provided the social worker with information regarding the maternal great-great-grandfather, which was not included in the original ICWA notification. The social worker indicated she had provided that information to a CFS ICWA noticing clerk, but there is no indication in the record that the clerk ever issued a new notification with the new information.
Although the social worker indicated in her reports that the court should find that ICWA did or might apply, the court, despite indicating it had read the reports, never mentioned ICWA again after its order determining that ICWA did not apply. However, neither parent on appeal addresses the revised criteria for evaluating whether CFS had a reason to believe that Indian children were involved. (Welf. & Inst. Code, § 224.2, subd. (e).) At most, the new information provided by mother and the maternal grandmother suggest a mere possibility of Indian ancestry. But, as stated in Austin J., "Indian ancestry, heritage, or blood quantum, however, is not the test; being an Indian child requires that the child be either a member of a tribe or a biological child of a member. [Citations.] Being a member of a tribe depends 'on the child's political affiliation with a federally recognized Indian Tribe,' not the child's ancestry. [Citations.] Consequently, 'many racially Indian children' do not fall within ICWA's definition of an Indian child, while others may be Indian children even though they are 'without Indian blood.' [Citation.] Indian ancestry, without more, does not provide a reason to believe that a child is a member of a tribe or is the biological child of a member." (Austin J., supra, 47 Cal.App.5th at pp. 888-889; see In re Jeremiah G. (2009) 172 Cal.App.4th 1514, 1520 ["if the child is not a tribe member, and the mother and the biological father are not tribe members, the child simply is not an Indian child"]; Brackeen v. Bernhardt (5th Cir. 2019) 937 F.3d 406, 428 ["ICWA's definition of Indian child is a political classification"], rehg. en banc granted (5th Cir. 2019) 942 F.3d 287, 289.) Here, there is nothing more.
Because there was insufficient evidence to provide a reason to believe that minors (or their mother) are members of, or are eligible for membership in, an Indian tribe, the statute imposed no duty to make further inquiry. We reject both parents' claims to the contrary. Thus, sufficient evidence supported the court's prior determination that minors were not Indian children for purposes of ICWA.
III. DISPOSITION
The orders terminating parental rights are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. MENETREZ
J.