In re M.M. CA2/8 ( 2021 )

Filed 6/24/21 In re M.M. CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re M.M., a Person Coming B308044
Under the Juvenile Court Law.
______________________________ (Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. 20CCJP00663A)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
P.B.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Steff R. Padilla, Commissioner. Affirmed.
John L. Dodd, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Sarah Vesecky, Senior Deputy
County Counsel, for Plaintiff and Respondent.
_______________________
Mother P.B. appeals the juvenile court’s findings under the
Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (the Act) and
related California law regarding her son M.M. She claims the
Department of Children and Family Services failed to comply
with the inquiry provision of the Act.
The Department’s inquiry sufficed. We affirm.
Undesignated statutory references are to the Welfare and
Institutions Code.
I
We review the factual and procedural background.
A
First we describe the proceedings related to M.M.’s
removal.
On January 29, 2020, the Department received a referral
after M.M.’s friend’s parents brought him to a police station.
Thirteen-year-old M.M. had been staying with the friend for
three days and said his father would not allow him to return
home.
The father initially denied not allowing M.M. to return
home. He lived with his wife (M.M’s stepmother) and their
daughter on a military base. He said a court in North Carolina
awarded him full physical and legal custody when M.M. was
eight years old. He reported M.M. had constant behavioral
problems at school, therapy had not helped, his daughter was
afraid of M.M., and M.M. was not allowed a key to the home
because he would steal. He said M.M.’s mother would “concoct
ideas” with M.M. to get him back and had a history of calling the
Department to make allegations against the father. The father
said he did not know what to do. He “appeared conflicted” and,
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after consulting with his wife, said he could not have M.M. back
in the home.
M.M. said he ran away because his father and stepmother
did not want him. He reported abuse by his stepmother and said
she would not allow him inside the house and constantly told him
to leave. He denied behavioral problems at school and said he
was “getting all As.” (At detention, M.M. was failing eighth
grade.) M.M. said he wanted to live with the mother in North
Carolina but knew this was not possible. He said he understood
he would go to a foster home and was “okay with that.”
The Department contacted the mother by telephone. She
confirmed having lost custody of M.M. in 2015 but “has been
trying to get [M.M.] back ever since then.” The mother has
another child who is in the maternal grandmother’s custody. The
mother has a history of drug use and a criminal conviction for
driving under the influence. She denied all previous child
services involvement in North Carolina. She said her maternal
aunt Sharon B., M.M.’s great-aunt, was willing to care for him.
The Department’s report noted the mother “did not seem to
be truthful about her history. The mother just kept talking about
getting [M.M.] to North Carolina through [the Interstate
Compact on the Placement of Children].”
Records from the mother’s county in North Carolina
indicated she had “an extensive history” with the Department of
Social Services there. Between 2005 and 2013, that department
received 13 referrals on behalf of the mother’s family. A 2015
referral alleged the mother was arrested for solicitation, she left
M.M. and his sister by themselves, and she consumed alcohol and
cocaine in the children’s presence.
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On January 30, 2020, the Department detained M.M. On
February 3, 2020, it filed a section 300 petition alleging he was at
risk due to the father and stepmother’s abuse, the father’s
unwillingness to provide care and supervision, and the mother’s
criminal conviction and history of drug use.
The juvenile court held a detention hearing on February 4,
2020. It ordered M.M. removed from the parents’ care and
monitored visits, specifying monitored phone calls for the mother.
Afterward, the father “remained adamant that he does not wish
to participate in visitation with [M.M.]” and wanted to waive
reunification services.
Between the detention hearing and the disposition hearing,
the Department had to place M.M. in different homes three times
because of problems with M.M.’s and the mother’s behavior. The
mother made rude comments about caregivers during monitored
calls and sent them offensive text messages. M.M. “exhibit[ed]
defiant behaviors” including verbal and physical aggression.
Caregivers and Department staff reported M.M.’s “behavior often
amplifies after telephone contact with his mother” and they
“believed that mother has encouraged [M.M.] to misbehave with
the [belief] that he would exhaust placements and the
Department will return him to her care.” M.M. said he wanted to
live with his mother and “thinks that if he continues to move
placements then the Department will eventually return him to
[her].”
Between June and August 2020, the court continued four
hearings while it tried to contact a North Carolina court.
On September 16, 2020, the court held a combined
adjudication and disposition hearing. The court explained the
North Carolina court would not exercise jurisdiction and asserted
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jurisdiction in California. The court admitted the Department
reports into evidence, heard argument, and sustained the section
300 petition, as amended to strike the physical abuse allegations
against the father and stepmother.
The court declared M.M. a dependent and found return to
his parents’ care, custody, and control would be contrary to his
welfare. The father waived reunification services. The court
ordered DCFS to provide the mother with reunification services
and to investigate placement in her home or the home of the
maternal great-aunt, Sharon B.
B
We turn to the proceedings related to the Indian Child
Welfare Act. (25 U.S.C. § 1901 et seq.)
Early in the Department’s investigation of this referral, the
father reported membership in the Occaneechi Band of the
Saponi Nation Indians. The mother initially told the Department
she did not have any American Indian heritage. Accordingly, the
ICWA-010(A) form attached to the section 300 petition
documented the father’s tribal membership and the mother’s
report of no Indian background.
At the February 4, 2020 detention hearing, the father
provided an ICWA-020 form indicating membership in the
Occaneechi tribe and providing his membership number. The
court found reason to believe M.M. was an Indian child.
The Department conducted a further interview with the
father confirming his membership. The father later provided the
Department with a copy of his registration card and information
about his family members. The Department then learned the
Saponi Nation is not a federally recognized tribe. The Act applies
only to federally recognized tribes. (25 U.S.C. § 1903(8); § 224.1,
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subd. (a) [adopting federal definitions]; In re Elizabeth M. (2018)
19 Cal.App.5th 768, 786.)
On February 21, 2020, the mother reported her paternal
grandmother might have been associated with an Indian tribe.
The mother said she did not know her paternal grandmother’s
name or the name of the tribe. On February 26, the mother
provided the Department with her father’s and her maternal
great-grandmother’s obituaries and said the family might have
Cherokee Indian heritage.
On February 28, 2020, the Department mailed a notice to
three Cherokee tribes and to the Occaneechi Band of the Saponi
Nation.
At the June 25, 2020 detention hearing, the mother filed an
ICWA-020 form indicating she was a member or might be eligible
for membership in a Cherokee tribe. The mother’s counsel said
the mother “indicates that her grandmother may have been
Cherokee.” The court ordered the Department to “notify all the
appropriate Cherokee nations.” At this hearing, the mother’s
counsel reported the mother was residing in North Carolina with
her mother, M.M.’s maternal grandmother.
Counsel for the Department informed the court the
Department already sent notice to the Cherokee tribes but had
not received return receipts. Counsel reported notice had been
sent to the father’s tribe, notice had been proper, and that tribe
did not respond or intervene. Counsel said it would follow up
with the Cherokee Nation and told the mother that if she had
additional information, she could provide it to the Department
and the Department would follow up.
On June 30, 2020, the Department sent new notices to the
Cherokee tribes including information “provided from mother,
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maternal grandmother and father.” This notice included the
maternal grandmother’s address, which was the same as the
mother’s address. The Department received return receipts for
all three notices dated July 6, 2020.
The Department received a letter dated June 22, 2020,
from the Eastern Band of Cherokee Indians reporting M.M. was
not a member or eligible to be a member of that tribe, and he was
not considered an Indian child in relation to it.
At the adjudication and disposition hearing on September
16, 2020, the court found the Act did not apply.
III
On appeal, the mother challenges only the adequacy of the
Department’s inquiry into M.M.’s status as an Indian child under
the Act. She describes five problems with the inquiry: (1) the
Department did not include the maternal grandmother’s address
in the February 28, 2020 notice; (2) the Department did not
interview the maternal great-aunt; (3) the Department did not
include the last known address of the deceased maternal
grandfather; (4) the Department omitted some unspecified
information; and (5) the Department did not interview the
maternal grandmother.
When the facts are undisputed, we independently
determine whether the Act’s requirements have been satisfied.
(In re D.S. (2020) 46 Cal.App.5th 1041, 1051 (D.S.); In re A.M.
(2020) 47 Cal.App.5th 303, 314 (A.M.).)
We review the juvenile court’s findings under the Act,
however, for substantial evidence. We affirm if “reasonable,
credible evidence of solid value” supports the orders and resolve
all conflicts in favor of affirmance. (A.M., supra, 47 Cal.App.5th
at p. 314; In re Austin J. (2020) 47 Cal.App.5th 870, 885 (Austin).)
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The appellant has the burden to show the evidence was not
sufficient to support the findings and orders under the Act.
(Austin, at p. 885.)
We begin with background about the Act. The Act reflects
a congressional determination to protect American Indian
children and to promote the stability and security of Indian tribes
and families. (25 U.S.C. § 1902; Austin, supra, 47 Cal.App.5th at
p. 881.) To that end, the Act established unique standards for the
removal and placement of American Indian children. (25 U.S.C.
§ 1901 et seq.)
Central to the protections of the Act are procedural rules to
determine whether an Indian child is involved. To be an Indian
child, the child must be either (1) a member of a tribe or (2) a
biological child of a member and eligible for membership. (25
U.S.C. § 1903(4); § 224.1, subd. (a) [adopting federal definitions];
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”].)
Federal regulations implementing the Act require state
courts to ask participants in child custody proceedings whether
the participant knows or has reason to know the child is an
Indian child. (25 C.F.R. § 23.107(a).) The court must also tell the
parties to inform the court if the parties receive information that
gives them reason to know the child is an Indian child. (Ibid.)
The juvenile court has “an affirmative and continuing duty
to inquire” whether a child subject to a section 300 petition may
be an Indian child. (§ 224.2, subd. (a); In re Dominic F. (2020) 55
Cal.App.5th 558, 566 (Dominic).) “This continuing duty can be
divided into three phases: the initial duty to inquire, the duty of
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further inquiry, and the duty to provide formal ICWA notice.”
(Dominic, at p. 566.) Only the second stage is at issue here.
State law lays out requirements for initial inquiry and
further inquiry. (Austin, supra, 47 Cal.App.5th at p. 883.)
Initial inquiry includes the following. The 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.” (§ 224.2, subd. (b).)
At each participant’s first appearance at dependency proceedings,
the court must ask whether the participant knows or has reason
to know the child is an Indian child. (§ 224.2, subd. (c).)
The court and Department social workers must make
“further inquiry” if the court or Department has “reason to
believe” an Indian child is involved. (§ 224.2, subd. (e).) “Reason
to believe” was undefined in the statute until legislative changes
took effect on September 18, 2020—two days after the disposition
hearing at which the juvenile court found the Act did not apply.
(Stats. 2020, ch. 104, § 15.) Section 224.2, subdivision (e)(1), now
specifies: “There is reason to believe a child involved in a
proceeding is an Indian child whenever the court, social worker,
or probation officer has information suggesting that either the
parent of the child or the child is a member or may be eligible for
membership in an Indian tribe. Information suggesting
membership or eligibility for membership includes, but is not
limited to, information that indicates, but does not establish, the
existence of one or more of the grounds for reason to know [the
child is an Indian child].”
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The law lays out steps the court and Department must take
as “further inquiry,” including interviewing parents and extended
family members and notifying the Bureau of Indian Affairs and
any tribes “that may reasonably be expected to have information
regarding the child’s membership, citizenship status, or
eligibility.” (§ 224.2, subd. (e)(2); see also Cal. Rules of Court,
rule 5.481(a)(4).) Contact with a tribe must include, at minimum,
“telephone, facsimile, or electronic mail contact to each tribe’s
designated agent” and information “necessary for the tribe to
make a membership or eligibility determination.” (§ 224.2, subd.
(e)(2)(C).)
A court’s finding there is “reason to know” a child is an
Indian child requires formal notice to the tribe. (§ 224.3; see also
Dominic, supra, 55 Cal.App.5th at p. 568.) Sharing information
with a tribe at the “further inquiry” stage is distinct from formal
notice. (Dominic, at p. 567.)
In the present case, the court found there was “reason to
believe” M.M. was an Indian child at the initial detention hearing
when the father informed it of his Indian heritage. This
triggered the duty of further inquiry. The Department
accordingly conducted a further interview with the father and
obtained more information about his membership and tribe.
When the mother filed a form at the June 25, 2020 hearing
documenting her possible Cherokee heritage, the court ordered
the Department to “notify all the appropriate Cherokee nations.”
The Department had already notified those nations, the Bureau
of Indian Affairs, and the Secretary of the Interior in February,
when the mother initially reported possible Indian heritage. The
Department nonetheless sent additional notices with return
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receipts on June 30, 2020. One tribe responded and denied
M.M.’s status as an Indian child in relation to it.
At the disposition hearing on September 16, 2020, the court
properly determined the Act did not apply.
Both parties agree the father is not a member of a federally
recognized tribe.
The mother’s assertion of Cherokee heritage was “ ‘vague,
attenuated, and speculative.’ ” (Austin, supra, 47 Cal.App.5th at
p. 888.) Nonetheless, the Department conducted a further
inquiry and sent notice to three Cherokee tribes. The
Department’s counsel asked the mother to pass on any new
information, which it promised to investigate. No tribe
intervened and no new information surfaced.
The Department made a good faith effort to gather
information about M.M.’s membership status or eligibility. (See
Dominic, supra, 55 Cal.App.5th at p. 570.) “[The Department’s]
inquiry obligation is ‘not an absolute duty to ascertain or refute
Native American membership.’ ” (Ibid.) The Department
complied with its “further inquiry” obligations pursuant to
section 224.2, subdivision (e) when it identified and notified, with
return receipts, three Cherokee tribes. There was no “reason to
know” M.M. was an Indian child under the Act. (§ 224.2, subd.
(d).)
Mother alleges five errors in the Department’s inquiry. We
address each in turn.
A
First, the mother complains the Department did not
include the maternal grandmother’s address in the February 28,
2020 notices to the Cherokee tribes. She concedes it included the
maternal grandmother’s name, birth date, and birth place. She
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also concedes the June 30, 2020 notices included the maternal
grandmother’s address—which, notably, is the same as the
mother’s address.
The mother does not clarify why her mother’s residence is
relevant to the mother’s claim of possible Cherokee heritage
through her paternal grandmother. The mother provides no
citation to case law or statute requiring provision of this
peripheral piece of information to comply with the Act.
Regardless, the Department supplied the address later. Its
initial oversight, if any, was harmless.
In her reply brief, the mother also notes the Department
failed to list former addresses for the mother and maternal
grandmother. We disregard an argument raised for the first time
in a reply brief. (WorldMark, The Club v. Wyndham Resort
Development Corp. (2010) 187 Cal.App.4th 1017, 1030, fn. 7.)
B
The mother next says the Department did not ask maternal
great-aunt Sharon B. about M.M.’s possible Indian heritage.
Sharon B. is not a participant in this proceeding. The
Department spoke with Sharon B. on February 2, 2020, which
was early in its investigation. The mother first reported possible
paternal Indian heritage nearly three weeks later, on February
21, 2020. Sharon B. is the mother’s maternal aunt. The
Department was not required to interview M.M.’s great-aunt—on
an unrelated side of the family—to comply with the Act. (See 25
U.S.C. § 1903(2); § 224.1, subd. (c) [adopting federal definitions];
D.S., supra, 46 Cal.App.5th at p. 1053 [duty to inquire of
extended family members does not include great-grandparents].)
The Department “is not required to ‘cast about’ for information or
pursue unproductive investigative leads.” (D.S., at p. 1053.)
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C
In two sentences, the mother points out the Department
did not include the last known address for her deceased father,
M.M.’s grandfather, on the notices. The notices included his
name, date and place of birth, and date and place of death. The
mother does not explain why the omitted address is material. We
disregard claims unsupported by argument.
D
The mother says the Department “gleaned” the dates of
death of her father and maternal great-grandmother from
obituaries she provided but it “neither included any additional
information from the obituaries, nor reported there was none.”
The mother does not describe what this additional information is
or could be, or why the Department should have provided it.
Again, we disregard claims unsupported by argument.
E
Finally, the mother contends the Department did not
interview the maternal grandmother. Or, if it did, it did not
properly document the interview.
The Act requires the Department to ask extended family
members, including grandparents, about possible Indian
heritage. (25 U.S.C. 1903(2); § 224.1, subd. (c).) Here, the record
indicates the Department did ask the maternal grandmother. It
reported the June 30, 2020 notices included information
“provided from mother, maternal grandmother and father.”
These notices newly included the maternal grandmother’s
address. We infer the Department discovered or verified this
address after contacting the maternal grandmother.
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The mother invites us to presume the Department is “being
disingenuous” about having contacted the maternal grandmother.
We decline.
DISPOSITION
We affirm.
WILEY, J.
We concur:
GRIMES, Acting P. J.
STRATTON, J.
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