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Kern Cnty. Dep't of Human Servs. v. John P. (In re D.P.)

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Jan 7, 2021
No. F080843 (Cal. Ct. App. Jan. 7, 2021)

Opinion

F080843 C/w F081320

01-07-2021

In re D.P. et al, Persons Coming Under the Juvenile Court Law. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. JOHN P. et al., Defendants and Respondents; D.P. et al., Appellants. In re D.P. et al, Persons Coming Under the Juvenile Court Law. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. JOHN P., Defendant and Appellant; D.P et al., Respondents.

Jamie A. Moran, under appointment by the Court of Appeal, for Appellants and Respondents D.P and J.P., minors Benjamin Ekenes, under appointment by the Court of Appeal, for Appellant and Respondent John P. Suzanne M. Nicholson, under appointment by the Court of Appeal, for Defendant and Respondent, Rebecca P. Margo A. Raison, County Counsel, and Bryan C. Walters, Deputy County Counsel, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. JD137726-01, JD137727-01)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Marcos R. Camacho, Judge. Jamie A. Moran, under appointment by the Court of Appeal, for Appellants and Respondents D.P and J.P., minors Benjamin Ekenes, under appointment by the Court of Appeal, for Appellant and Respondent John P. Suzanne M. Nicholson, under appointment by the Court of Appeal, for Defendant and Respondent, Rebecca P. Margo A. Raison, County Counsel, and Bryan C. Walters, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

Appellant minors challenge the disposition orders in their dependency case, which included a finding that the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) does not apply to their case. In a separate appeal that has since been consolidated with the present matter, appellant father challenges the court's order bypassing him for services. He also challenges the court's orders on the grounds of improper notice and a purportedly erroneous ICWA finding. We reject all appellants' contentions and affirm.

FACTS

On August 23, 2017, the Kern County Department of Human Services (the "Department") filed dependency petitions as to then-four-year-old J.P. and then-five-year-old D.P. (collectively, "minors.") The petitions alleged J.P. had been found walking in front of an apartment complex. J.P.'s brother D.P., was found in the living room of mother, Rebecca P.'s ("Mother") home with no adults present. The home was very dirty, there was no edible food in the refrigerator or cabinets, and there were several knives in drawers accessible to the children. Food covered in bugs and mold was found on the floor. Mother arrived around an hour later and claimed she had left the children with a man named Brandon the night before. She could not provide any additional information about the individual besides his first name.

The petitions further alleged that Mother had been diagnosed with bipolar disorder; had not been taking her medication; and was last treated by a doctor approximately one year prior. Finally, the petitions alleged that minors' father, John P. ("Father") was incarcerated at Wasco State Prison.

Social worker reports indicate that Father pled no contest to felony vehicle theft with a prior (Pen. Code, § 666.5, subd. (a)) on May 12, 2017. He was initially sentenced to a six-year term but was later given an anticipated release date of December 20, 2020.

A social study dated August 23, 2017, reflected that Father had a substantial criminal history, including a 2002 conviction for first degree burglary; a 2004 conviction for taking a vehicle without the owner's consent; a 2008 conviction for battery on an intimate partner; a 2009 conviction for obstructing or resisting a peace officer; 2010 convictions for receiving stolen property, carrying a concealed dirk or dagger, possession of a controlled substance for sale, and providing false identification to a peace officer; 2011 convictions for battery on an intimate partner, violating a court order to prevent domestic violence, and receiving stolen property; a 2012 conviction for carrying a concealed dirk or dagger; convictions for violating post release supervision in 2012, 2015, 2016 and 2017; and a 2016 conviction for battery on an intimate partner. The offense for which he was currently incarcerated was a 2017 conviction for vehicle theft with a prior.

On August 24, 2017, Mother filed a "Parental Notification of Indian Status" form indicating she "may have Indian ancestry," specifically "Blackfoot/Cherokee." Mother told a social worker that she was not a member of any tribe. However, she said her grandmother had Cherokee and Blackfoot ancestry and her grandfather had Cherokee ancestry.

Father later filed the same form, indicating that, to his knowledge, he has no Indian ancestry.

On September 29, 2017, the Department contacted relatives as part of its ICWA inquiry. Maternal aunt Kristy H. said "there is Cherokee heritage in the family on her father's side" through her great-grandmother. Maternal grandmother Beverly F., said she had "Blackfeet and Cherokee ancestry on her mother and father's side."

Beverly is referred to by several different last names in the record, one of which is the same as Mother's maiden name. To further the privacy of the minors involved in this case, we will refer to Beverly and most other individuals by their first name and the initial of their last name.

On October 3, 2017, the Department mailed ICWA notices for an October 17, 2017 hearing to the Eastern Band of Cherokee Indians, the Blackfeet Tribe of Montana, Cherokee Nation, and United Keetowah Band of Cherokee Indians in Oklahoma.

The notices contained the children's first and last names; parents' names (and mother's maiden name); Mother's address and former mailing address; and parents' birthdates and cities, among other information. The notices did not include the minors' middle names; the maternal grandmother's married last name; any information about mother's paternal grandfather, John H.; the maternal great-grandmother's married name; the state in which the Cherokee tribe was located; and the maternal great-grandfather, V.F.'s birth place of Arkansas or Idaho.

The notices indicated V.F.'s birth state was "Possibly IA or ID."

The United Keetoowah Band of Cherokee Indians in Oklahoma responded to the notices as follows:

"With the information you supplied us, a search of the United Keetoowah Band of Cherokee Indians in Oklahoma enrollment records was conducted. There is no evidence that supports the above referenced individual is/are descendants from anyone on the Keetoowah Roll. Neither the above referenced individual nor either of the individual's biological parents are members of the UKB."

The Eastern Band of Cherokee Indians responded that D.P. and J.P. were neither registered as a member nor eligible to register as a member of the tribe. The response noted that the determination was based on information provided by the Department and that incorrect or omitted "family documentation" could invalidate the determination.

On October 23, 2017, the Department mailed ICWA notices for the December 12, 2017, dispositional hearing to the same tribes.

On November 22, 2017, the children were transported to visit with Father in Wasco State Prison. At the beginning of the visit, J.P. picked up the phone and said, " 'Hi, I missed you.' " Father told the children he loved them and asked about school and other everyday activities. They all laughed and played together.

On December 7, 2017, the children again visited Father in prison. Father told the children he loved them. They played games and laughed together.

By mid-February 2018, Father had been moved to a prison in Arizona and visits ceased.

In February 2018, the Blackfeet Tribe responded that J.P. and D.P. were not enrolled, nor eligible for enrollment. The court found that ICWA did not apply to J.P. or D.P.

On August 15, 2018, the court placed J.P. and D.P. back with Mother and directed that she be provided family maintenance services. On February 20, 2019, the court awarded Mother sole legal and physical custody of J.P. and D.P. and terminated its jurisdiction.

New Dependency Case

On September 24, 2019, the Department filed new dependency petitions as to J.P. and D.P. This is the court proceeding from which appellants are currently appealing.

The petitions alleged that on September 20, 2019, Mother told law enforcement personnel that she had "snorted methamphetamine" while caring for the children. They further alleged that Mother had not sought mental health services since October 2018 yet was taking Lithium "sporadically" and without "medication management." The petitions alleged Father was incarcerated at North Kern State Prison.

On September 25, 2019, Mother filed a new "Parental Notification of Indian Status" form. This time, she indicated that, as far as she knew, she had no Indian ancestry.

Detention Hearing

Also, on September 25, 2019, the court held the detention hearing. Mother's counsel indicated that Father was in custody at the time of the hearing and was not transported to the hearing.

When asked about Indian heritage, Mother said, "I do have enough to, like, you know, be recognized, but we haven't went [sic] through the proper proceeding, like, to get recognized."

The court ordered the children detained and scheduled a jurisdictional/dispositional hearing for November 14, 2019.

Maternal Grandmother

On October 15, 2019, maternal grandmother Beverly H. told a social worker that there was Cherokee and Blackfeet heritage on her side and Cherokee heritage on the maternal grandfather's side. Beverly said no one in the family had been enrolled or registered with a tribe. However, Beverly then said that her own great-great grandmother "may" have been a tribal member, but any relevant documentation was gone because she had lost most of her paperwork during a recent move.

Father's Statement Regarding Appearance at Hearing Affecting Parental Rights

On October 16, 2019, a JV-451 form ("Prisoner's Statement Regarding Appearance At Hearing Affecting Parental Rights") signed by Father was filed. The printed form states, "I understand that hearings regarding my rights, responsibilities, and relationship to the following children[: D.P., J.P.] will be held:" on November 6, and November 14, 2019. The form has a box next to the statement, which is unchecked.

Immediately below that section, the form states: "I understand that the hearing is set to." An unchecked box appears next to the sentence fragment. Below the sentence fragment are three options, only one of which was checked on the form. The checked statement was: "consider a petition to declare the child a dependent of the court under Welfare and Institutions Code section 300, which may limit my rights to the care, custody, and control of my child."

All further statutory references are to the Welfare and Institutions Code unless otherwise stated.

On the next page of the form, Father indicated that he understood he had the right to be physically present at the November 6, and November 14, 2019, hearings, but he did "not want to be physically present at the court" and wanted to "give up that right." Father also indicated he did not want to participate by videoconference or telephone.

Notice of Hearing on Petition

In the clerk's transcript appears a document dated October 28, 2019, entitled "Notice of Hearing on Petition." The document has no file stamp. The document states it is a "Notice to [Father]" that a mediation was scheduled for November 7, 2019, and a hearing was scheduled for November 14, 2019. The notice advised Father of several points, including: "You have the right to be present at the hearing, to present evidence ..." and "The court may proceed with this hearing whether or not you are present."

Father's Parent Questionnaire

On November 4, 2019, a social worker mailed Father a copy of the jurisdictional report along with a parent questionnaire and a note asking if he wanted visits and/or reunification services. Father completed the parent questionnaire and indicated that he wanted visits and reunification services.

Father's Communication with the Department

On November 15, 2019, a social worker received an affidavit from Father stating:
"This is [Father] I am writ[]ing this to [a]sk [i]f the up[]coming Disposition is A NEW case or is this the same case, A[s] [f]ar as I know, [Mother] got the boys back? And [h]as been [d]oing good. Please let me know. I was asked ... if I would like to be present for this Disposition[.] I [d]eclined, on the thought that this Disposition was [j]ust a finalization[; t]hat [Mother] got custody of the boys & nothing more[. C]urrently me & [Mother] are not talking so I don't know anything. Please let me know."

Hearing on November 14, 2019

Father did not attend the hearing on November 14, 2019, but his lawyer did. The court said it thought Father "submitted" on the issues of jurisdiction and disposition. Father's counsel replied:

"The thing is he did - I believe he submitted a waiver, but after he signed that waiver, he contacted me and said he thought it was in relation to the previous case. He did not realize there was a new dependency. He does want to be here for the new dependency issue."

Father's Second Statement Regarding Appearance at Hearing Affecting Parental Rights

On December 31, 2019, another statement regarding appearance at hearing affecting parental rights (JV-451), signed by Father was filed.

The printed form stated, "I understand that hearings regarding my rights, responsibilities, and relationship to the following children[: D.P., J.P.] will be held:" on January 15, 2020. The form has a box next to the statement, which is unchecked.

Immediately below that section, the form states: "I understand that the hearing is set to." An unchecked box appears next to the sentence fragment. Below the sentence fragment are three options, only one of which was checked on the form. The checked statement was: "consider a petition to declare the child a dependent of the court under ... section 300, which may limit my rights to the care, custody, and control of my child."

On the next page of the form, Father indicated that he understood he had the right to be physically present at the January 15, 2020, hearing, but he did "not want to be physically present at the court" and wanted to "give up that right." Father also indicated he did not want to participate by videoconference or telephone.

Jurisdictional Hearing

A hearing was held on January 15, 2020. The hearing was initially intended to serve as a jurisdictional and dispositional hearing. At the outset of the hearing, Father's counsel stated:

"My client's not an offending parent. He was in custody when all of this happened, so we are submitting on the jurisdictional aspect. I would be requesting a continuance on dispo because it's a denial of services. And I have been in correspondence with him, and I'm awaiting his responses to how to proceed as far as a denial."

The court found the allegations of the petitions true. The court continued the dispositional portion of the hearing to February 26, 2020.

Father's Third Statement Regarding Appearance at Hearing Affecting Parental Rights

On February 4, 2020, another statement regarding appearance at hearing affecting parental rights (JV-451), signed by Father was filed.

The form stated, "I understand that hearings regarding my rights, responsibilities, and relationship to the following children[: D.P., J.P.] will be held:" on February 26, 2020. The form has a box next to the statement, which is unchecked.

Immediately below that section, the form states: "I understand that the hearing is set to." An unchecked box appears next to the sentence fragment. Below the sentence fragment are three options, only one of which was checked on the form. The checked statement was: "consider a petition to declare the child a dependent of the court under ... section 300, which may limit my rights to the care, custody, and control of my child."

On the next page of the form, Father indicated that he understood he had the right to be physically present at the February 26, 2020 hearing, but he did "not want to be physically present at the court" and wanted to "give up that right." Father also indicated he did not want to participate by videoconference or telephone.

Dispositional Hearing

At the outset of the dispositional hearing on February 26, Mother's counsel said she was "making a special appearance for Ms. Trujillo, who represents the father. The father is not present."

Minors' counsel argued that new ICWA notices needed to be sent. Mother testified that she reviewed the ICWA notices sent on October 23, 2017, with her lawyer and that there was no new information to provide. However, on cross-examination Mother stated that the ICWA notices did not have the minors' middle names; her mother's or grandmother's married name; or any information about her father's father.

The court found that there was no "reason to know that the child may be a[n] Indian child as defined in the Indian Child Welfare Act; therefore, the Indian Child Welfare Act does not apply." The court then adjudged the children dependents of the court; placed them in the custody of the Department; granted services to Mother; and denied services to Father under section 361.5, subdivision (e). Minors and Father filed separate appeals which were subsequently consolidated.

DISCUSSION

I. Father Forfeited his Challenge to Defective Notice by Failing to Object Below

Father argues the notice he received of the disposition hearing was inadequate and thereby violated his right to due process. The Department first contends Father forfeited this issue by failing to object below.

A. Law

1. Right to Notice

Parents have a statutory right to receive notice of dependency hearings. (See § 291, subds. (a)(1)-(2).) The notice must include certain information, including the name and address of the person notified; the nature of the hearing; each section and subdivision under which the proceeding has been initiated; the date, time, and place of the hearing; and the name of the child upon whose behalf the petition has been brought. (Id., subd. (d).) The notice must also contain certain advisements, including a statement that the hearing may proceed even if they are absent. (Id., subd. (d)(6)(A).)

Parents also possess a constitutional due process right to be informed of the nature of the hearing, so that he or she may make an informed decision whether to appear and contest the allegations. (In re Wilford J. (2005) 131 Cal.App.4th 742, 751.)

2. Forfeiture of Issues by Failing to Object Below

Generally, an appellant cannot raise an issue on appeal without having first objected in the lower court. (In re S.B. (2004) 32 Cal.4th 1287, 1293.) "The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected. [Citation.]" (Ibid.)

B. Analysis

The Department sent a notice of the February 26, 2020, disposition hearing to Father dated January 27, 2020. The notice included father's name and address; the date, time and location of the hearing; a statement that a petition had been filed alleging the children come within the provisions of section 300 of the Welfare and Institutions Code; the names of the children under the heading "CASE NAME"; and an advisement that the court may proceed with the hearing whether or not Father was present. However, the Department concedes the notice suffers from a single flaw: it does not describe the nature of the hearing. (See § 291, subd. (d)(2).)

Notwithstanding the defective notice, Father was represented at the disposition hearing by counsel specially appearing on his behalf. Counsel did not object to proceeding with the hearing. As explained below, we conclude that Father, having failed to raise the notice issue at the hearing, cannot now raise the issue on appeal.

Father says he himself was not present at the hearing because of the improper notice. However, the forfeiture rule is based on the absence of objection from counsel; not on Father's absence from the hearing.

We think it quite likely that counsel knew the February 26, 2020, hearing was a disposition hearing even though the written notice did not specify. Nonetheless, the notice should have specified the nature of the hearing. However, when the February 26, 2020, hearing turned out to be a disposition hearing where disposition orders were being issued, Father's counsel could have objected. He could have said the notice did not properly advise Father of the nature of the hearing, and therefore the hearing must be continued, and proper notice sent. Indeed, that is the core purpose of the forfeiture rule, "to encourage parties to bring errors to the attention of the trial court, so that they may be corrected. [Citation.]" (In re S.B., supra, 32 Cal.4th at p. 1293.) Yet, no objection was made here. If it had, the problem could have been easily remedied. This situation falls squarely within the purpose of the forfeiture rule.

Father requests that we exercise our limited discretion to excuse any forfeiture, but we decline to do so. (See In re S.B., supra, 32 Cal.4th at p. 1293 ["appellate court's discretion to excuse forfeiture should be exercised rarely and only in cases presenting an important legal issue. [Citations.]"].)

Other Courts of Appeal have applied this rule in analogous situations involving claims of improper notice. In In re Lukas B. (2000) 79 Cal.App.4th 1145, the father contended notice was improper "because there was some question as to whether or not he lived at the same address as the children and the paternal grandmother, where notice was served ...." (Id. at p 1152.) The appellate court found the issue forfeited because the father had failed to raise it below. (Ibid.)

In Marlene M. v. Superior Court (2000) 80 Cal.App.4th 1139, the mother argued she received inadequate notice the Department would seek to bypass her for reunification services at an upcoming hearing. (Id. at p. 1147.) The appellate court held that because the mother had not raised the notice issue below, it was forfeited on appeal. (Id. at p. 1149.)

Because Father has forfeited this issue, we do not reach its merits. (See In re X.V. (2005) 132 Cal.App.4th 794, 806.)

While we do not reach the issue of harmlessness, we observe that the notices did advise Father that a dependency petition had been filed, and the hearing concerned his children, D.P. and J.P.

II. The Disposition Order Bypassing Father for Services was Supported by Substantial Evidence

Father next contends that the court's order bypassing him for reunification services under section 361.5, subdivision (e)(1) was not supported by substantial evidence.

A. Law

A dependency court must offer services to incarcerated parents unless it determines, by clear and convincing evidence, that offering services would be detrimental to the child. (§ 361.5, subd. (e)(1).) "In determining detriment, the court shall consider the age of the child, the degree of parent-child bonding, the length of the sentence, the length and nature of the treatment, the nature of the crime or illness, the degree of detriment to the child if services are not offered and, for children 10 years of age or older, the child's attitude toward the implementation of family reunification services, the likelihood of the parent's discharge from incarceration, institutionalization, or detention within the reunification time limitations described in [section 361.5,] subdivision (a), and any other appropriate factors...." (§ 361.5, subd. (e)(1), italics added.) In making its decision, the court may decide to give more weight to one or more of these factors over others. (E.g., Edgar O. v. Superior Court (2000) 84 Cal.App.4th 13, 18-19.)

The parties agree we review this issue under the standard substantial evidence standard. (See Edgar O., supra, 84 Cal.App.4th at pp. 18-19.) Under that standard, "we 'review the entire record in the light most favorable to the trial court's findings to determine if there is substantial evidence in the record to support those findings.' [Citation.]" (Jennifer S. v. Superior Court (2017) 15 Cal.App.5th 1113, 1122.) We do not reweigh the evidence. (Id. at p. 1121.) Consequently, we will affirm if there is substantial evidence supporting the order, even if that evidence is contradicted by other evidence. (In re Noe F. (2013) 213 Cal.App.4th 358, 366.) "[W]e do not consider whether there is evidence from which the dependency court could have drawn a different conclusion ...." (Ibid.)

On appellate review, "we will infer a necessary finding provided the implicit finding is supported by substantial evidence. [Citations.]" (In re S.G. (2003) 112 Cal.App.4th 1254, 1260.)

As explained below, we conclude there was ample evidence from which the court could reasonably find granting services to Father would be detrimental to J.P. and D.P.

1. State of Father's Relationship with Children on February 26, 2020 Supported Bypass

Father lived with Mother and the children until his incarceration in February 2017. The record shows Father visited with the children once on November 22, 2017, and December 7, 2017. The two visits went well. However, by mid-February 2018, Father had been transferred to a prison in Arizona, and the court suspended visitation. After Father was transferred out-of-state, he did not have visits with J.P. and D.P.

A February 2019 social worker's report indicates that Mother said Father called her phone and spoke with the children. The report does not indicate when Father spoke to the children. In any event, by the fall of 2019, Mother said Father does not visit with the children.

As these facts show, by the time the court made the February 2020 order being challenged, Father had had little to no interaction with the children for over two years. On this record, the dependency court was free to conclude "the degree of parent-child bonding" (§ 361.5, subd. (e)(1)) favored bypass.

It is true that the visits in late 2017 went well. But those visits had occurred years prior. Moreover, "we do not consider whether there is evidence from which the dependency court could have drawn a different conclusion ...." (In re Noe F., supra, 213 Cal.App.4th at p. 366.)

2. Father's Criminal History Supports Bypass

The Department also cites to Father's criminal record as an "appropriate factor" that may be considered under section 361.5, subdivision (e)(1). We agree the evidence of Father's criminal history further supported a detriment finding here. Father's substantial criminal history included multiple convictions for battering an intimate partner. The dependency court could quite reasonably conclude that these crimes pose a particular risk to children, and that Father should be bypassed as a result.

In his reply brief, Father suggests the Department is estopped from arguing his criminal history suggests a risk because it did not make such allegations against Father in the dependency petitions. We will not find estoppel based on the absence of allegations in the dependency petition.

Father correctly observes that the crime for which he was then incarcerated was vehicle theft, which does not necessarily involve violence against a person. However, the battery convictions did involve violence against a person, and could properly be considered under the "any other appropriate factors" provision of section 361.5, subdivision (e)(1).

3. We do not Consider Contrary Evidence on Substantial Evidence Review

Father argues that other evidence works in his favor, such as the possibility of his release during the reunification period; the lack of prejudice in giving him services because Mother was going to receive services anyway; and the grant of visitation which, he says, suggests a strong bond with the children. However, because we have found in the record substantial evidence that supports the dependency court's decision, our role ends and "we do not consider whether there is evidence from which the dependency court could have drawn a different conclusion ...." (In re Noe F., supra, 213 Cal.App.4th at p. 366.)

III. Appellants Have not Established ICWA Error

Appellants contend the court erred in finding that ICWA had been satisfied here.

A. Law

The court and the Department have an ongoing statutory duty to inquire whether a child subject to a dependency petition is, or may be, an "Indian child." (§ 224.2, subd. (a).)

An "Indian child" is an unmarried minor who is either (1) a member of an Indian tribe or (2) eligible for membership and the biological child of a member of Indian tribe. (25 U.S.C. § 1903(4); § 224.1, subd. (a).) It is important to note that this definition does not turn on "the child's race, ancestry, or 'blood quantum,' but depends rather 'on the child's political affiliation with a federally recognized Indian Tribe.' [Citations.]" (In re Austin J. (2020) 47 Cal.App.5th 870, 882.) Regardless of their ancestry, a child must either be a member themselves or the eligible, biological child of a member to be an "Indian child" under ICWA. (25 U.S.C. § 1903(4); § 224.1, subd. (a).) "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.]" (In re Austin J., at p. 889.)

1. "Further Inquiry"

If the court or social worker has "reason to believe" that the child is an Indian child, then the court or social worker shall make "further inquiry" regarding the possible Indian status of the child. (former § 224.2, subd. (e).) Further inquiry includes, but is not limited to, interviewing the parents and extended family members. (former § 224.2, subd. (e)(1).)

Section 224.2 has been the subject of recent legislation. "Effective January 1, 2019, Assembly Bill No. 3176 (2017-2018 Reg. Sess.) [(Assembly Bill 3176)] amended the definition in section 224.2, subdivision (d), of when the court has reason to know a child is an Indian child - conforming California law to ICWA regulations." (In re D.F. (2020) 55 Cal.App.5th 558, 567.)
However, Assembly Bill 3176 did not define the phrase "reason to believe." (In re T.G. (2020) 58 Cal.App.5th 275, 290, fn. 14.) "To remedy that omission the Legislature in urgency legislation effective September 18, 2020 amended section 224.2, subdivision (e) ...." (Ibid., citing Assem. Bill No. 2944 (2019-2020 Reg. Sess.); Stats. 2020, ch. 104, § 15.)
Because the disposition hearing took place in February 2020, we refer to section 224.2 as modified by Assembly Bill, but not as modified by Assembly Bill No. 2944. (See In re T.G., supra, 58 Cal.App.5th at p. 290, fn. 14.)

If the court or social worker has "reason to know" that the child is an Indian child, then the Department must send formal ICWA notices. (§ 224.2, subd. (f).) There is "reason to know" a child is an Indian child in the following circumstances:

"(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 that the child 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." (§ 224.2, subd. (d).)

B. Analysis

Appellants essentially argue that the ICWA notices sent in the prior proceeding are insufficient to satisfy the Department's duty to send ICWA notices in the present proceeding. However, we conclude that the Department had no duty to send ICWA notices in the present proceeding. Therefore, the purported insufficiencies of notices sent in a prior proceeding are not dispositive.

Mother also argues the Department should have performed further inquiry and, if appropriate thereafter, formal notice. As a respondent on appeal, Mother can decline to oppose appellants' request for affirmative relief, but she cannot seek affirmative relief herself. (Valentine v. Plum Healthcare Group, LLC (2019) 37 Cal.App.5th 1076, 1090, fn. 4.) It appears Mother seeks to do the former. However, to the extent Mother offers any arguments for reversal beyond those presented by appellants, they are forfeited. (Ibid.)

As noted above, ICWA notice is required where there is "reason to know" the child is an Indian child. (§ 224.2, subd. (f).) Such "reason to know" exists, for example, if someone informs the court the child is an Indian child, or information is discovered indicating the child is an Indian child. (Id., subd. (d)(1) & (d)(3).) Incorporating the statutory definition of "Indian child," it becomes clear that such "reason to know" exists under subdivision (d)(1) or (d)(3) only when there is information indicating either that the child is a member of a tribe or is the eligible, biological child of a member. (See 25 U.S.C. § 1903(4); § 224.1, subd. (a).) Thus, to establish "reason to know" under subdivision (d)(1) or (d)(3), the information at issue must indicate the child or a biological parent is a member of a tribe - not that they merely have tribal ancestry. (See In re Austin J., supra, 47 Cal.App.5th at pp. 888-889.) There was no such information here.

Certainly, Indian ancestry raises the possibility of eligibility for membership in an Indian tribe. And it is the province of the tribe to determine requirements for membership. But eligibility only comes into play, if at all, where a biological parent is a member. A child who is eligible for membership, but is not the biological child of a member, falls outside the definition of an Indian child. (See 25 U.S.C. § 1903(4); § 224.1, subd. (a).) Thus, informing the court that the child or a biological parent may have Indian ancestry without the additional information that either the child or a biological parent is a member of a tribe, is insufficient to establish "reason to know" under subdivisions (d)(1) or (d)(3).

Appellants correctly observe that there is information in the record suggesting Mother and the children may have Indian ancestry. Mother, maternal aunt, and maternal grandmother stated the family had Indian ancestry; Mother filed a form in the prior proceeding indicating she "may have Indian ancestry," specifically "Blackfoot/Cherokee." We agree this information indicates Mother and the children may have Indian ancestry. If the standard were whether there was "reason to believe" or "reason to know" that the children have Indian ancestry, appellants would likely prevail. But that is not the standard. (See In re Austin J., supra, 47 Cal.App.5th at p. 889 ["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"]; but see In re D.F., supra, 55 Cal.App.5th at p. 569 .) As explained above, the correct standard is whether there is "reason to believe" or "reason to know" that the children are "Indian children" - meaning they are either members themselves, or are the eligible, biological children of a member. There is no reason to know or believe that the children or either of their biological parents is a member. To the contrary, Mother specifically told social workers in the previous case that she was not a member of a tribe. In the current proceedings, Mother filed a form saying she had no known Indian ancestry. Since there is no reason to know or believe that Mother or the children are members; there is also no reason to know or believe the children are "Indian children" under ICWA. Consequently, there was no duty to perform further inquiry or duty to send out formal notices. (See former § 224.2, subds. (e)-(f).)

Father counters that the Department here had more "reason to believe" minors were Indian children here than in In re Austin J., supra, 47 Cal.App.5th 870. In Austin J., the mother said she had been told that her mother had Cherokee ancestry. Moreover, in that case, both mother and the child's aunt said they might have Cherokee ancestry.

Father has requested that we take judicial notice of a letter from California Indian Legal Services and the California Tribal Families Coalition to the California Supreme Court requesting depublication of In re Austin J., supra, 47 Cal.App.5th 870. In the letter, California Tribal Families Coalition states it was "the sponsor and primary author" of Assembly Bill 3176, which amended the Welfare and Institutions Code effective January 1, 2019.
We grant the request for judicial notice (see Evid. Code, § 452, subd. (d)(1)), but conclude the substance of the letter is not material to our decision. In determining legislative intent generally, "the views of individual drafters are not considered as grounds upon which to construe a statute." (C-Y Development Co. v. City of Redlands (1982) 137 Cal.App.3d 926, 932; accord, Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th 828, 845.) While exceptions have occasionally been made "where the drafters' views were clearly and prominently communicated to the legislators at the time the measure was being considered for enactment ... [t]he exception is ... clearly confined to views expressed while the measure was being considered, and does not concern expressions of individual motivation made after the fact. [Citation.]" (C-Y Development Co., supra, 137 Cal.App.3d at p. 932.) The present letter post-dates the consideration and enactment of Assembly Bill 3176, and it does not necessarily reflect the views of the Legislature that enacted it. We therefore do not consider it "grounds upon which to construe a statute." (See ibid.)

In the present case, Father argues there is stronger evidence of Indian ancestry than in Austin J., because Mother said she had enough ancestry to have been "recognized" had she gone through the "proceeding" to be recognized. Even if we accept Father's characterization that the evidence of ancestry here is stronger than in Austin J., his argument would still miss the mark. "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." (In re Austin J., supra, 47 Cal.App.5th at p. 889.) What was lacking in Austin J. was not stronger evidence of Indian ancestry, but rather evidence that the child or a parent was a member of a tribe. The present appeal suffers from the same flaw.

DISPOSITION

The disposition orders are affirmed.

POOCHIGIAN, Acting P.J. WE CONCUR: PEÑA, J. DE SANTOS, J.


Summaries of

Kern Cnty. Dep't of Human Servs. v. John P. (In re D.P.)

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Jan 7, 2021
No. F080843 (Cal. Ct. App. Jan. 7, 2021)
Case details for

Kern Cnty. Dep't of Human Servs. v. John P. (In re D.P.)

Case Details

Full title:In re D.P. et al, Persons Coming Under the Juvenile Court Law. KERN COUNTY…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: Jan 7, 2021

Citations

No. F080843 (Cal. Ct. App. Jan. 7, 2021)