In re Melody P. CA2/3 ( 2022 )

Filed 12/29/22 In re Melody P. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re MELODY P., a Person Coming B321955
Under the Juvenile Court Law.
_____________________________________ (Los Angeles County
VANESSA P.,
Super. Ct. No. 20CCJP01837C)
Petitioner,
v.
THE SUPERIOR COURT OF LOS
ANGELES COUNTY,
Respondent;
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Real Parties in Interest.
Petition for extraordinary writ. Superior Court of Los
Angeles County, Nancy Ramirez, Judge. Petition denied.
Los Angeles Dependency Lawyers; Law Office of Martin
Lee, Dominika Campbell and Maria Bradish for Petitioner
Vanessa P.
Children’s Law Center of California, Ann-Marissa Cook
and Janelle Batta for Minor Melody P.
No appearance for Respondent.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel for Real Party in Interest.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
Vanessa P. (mother) filed a petition for extraordinary relief
from the juvenile court’s order setting a permanency planning
hearing under Welfare and Institutions Code1 section 366.26. At
mother’s request, we stayed the hearing pending the outcome on
this petition, in which mother’s sole contention is that the
juvenile court erred by finding that the Los Angeles County
Department of Children and Family Services (DCFS) adequately
investigated her child’s possible Indian ancestry, as required by
the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.)
and related state statutes. We deny relief.
BACKGROUND
Mother has seven children, but this petition concerns only
Melody, who was born in October 2018. Melody’s father is
deceased. Based on mother’s history of drug abuse and related
drug-related criminal convictions, mother’s parental rights have
been terminated as to two of Melody’s older siblings, Isaiah and
Adrian. Melody and three of her other siblings lived with
1 All further undesignated statutory references are to the
Welfare and Institutions Code.
2
maternal grandmother and maternal great-grandmother under a
probate guardianship. When both guardians died in 2021 from
COVID, Melody went to live with mother, who was in a
residential treatment facility. Mother had also just given birth to
her seventh child, Adelia, as to whom a juvenile petition was
filed.
In October 2021, DCFS filed a non-detained petition as to
Melody alleging failure to protect (§ 300, subd. (b)) and abuse of
sibling (§ 300, subd. (j)). An ICWA-010 form attached to the
petition stated that based on information mother had provided,
there was reason to believe Melody might have Blackfeet,
Choctaw, and Cherokee heritage. However, mother reported she
was not a currently registered tribal member because her
registration had expired, and her registration was no longer
federally recognized per the Bureau of Indian Affairs (BIA).
Mother also had never provided a requested blood sample,
although it is unclear who requested the sample.2 Mother also
said that her native heritage was through the paternal side of her
family, which included the surname L. Mother had no contact
information for any person who might have additional
information.
Based on this information, the juvenile court at the October
2021 detention hearing ordered DCFS to investigate mother’s
claim of Indian heritage.3
2 A blood sample mother had given when she was a minor
indicated she was 24.1 percent Native American, including
Choctaw, Blackfeet, and primarily Cherokee from Ohio, North
Carolina, and South Carolina.
3 Mother had also filled out an ICWA-020 form stating she
might have Blackfeet, Cherokee, and Choctaw heritage.
3
At the January 2022 adjudication hearing, the juvenile
court sustained an amended petition in part. Melody was
released to mother but was removed several months later due to
mother’s relapse and failure to comply with court orders. Melody
was placed with her maternal great-aunt, who reported that she
had no information about Indian heritage on the maternal side of
the family.
Thereafter, at a hearing in March 2022, the juvenile court
made a finding that ICWA did not apply to Melody’s younger
sibling Adelia based on responses received from tribes to ICWA-
030 notices, which contained mother’s date of birth and maternal
grandfather’s name (Carlos P.). The Cherokee Nation, Blackfeet
Tribe, the Eastern Band of Cherokee Indians Tribe, the Choctaw
Nation of Oklahoma, the Morongo Band of Mission Indians, and
the Mississippi Band of Choctaw Indians reported that Adelia
was either not enrolled or not eligible for enrollment in their
tribes.
Notices to tribes had similarly been sent in sibling Adrian’s
case containing information provided by family members.
Maternal great-aunt had reported that mother’s Indian ancestry
was through mother’s father, Carlos Anthony P. Maternal
grandmother provided his full name and date of birth but did not
know where he currently lived, although she thought he might
live in Las Vegas. Maternal grandmother said that neither
Carlos Anthony P. nor his mother had ever registered with a
tribe or lived on a reservation. Maternal great-grandfather
(Carlos Anthony P.’s father), James L., had lived on a Cherokee
reservation but had run away at age 12 or 13 and had died in
1990 or 1991. To maternal grandmother’s knowledge, the family
had no Choctaw or Blackfeet ancestry, and she had no additional
4
information. ICWA notices sent to tribes accordingly contained
mother’s name and date of birth, maternal grandmother’s name,
maternal grandfather’s name (Carlos Anthony P.) and date of
birth, and maternal great-grandmother’s name (Ladine L.). The
notices further stated that James L. had lived on a Cherokee
reservation. And the social worker stated in a declaration that
maternal grandmother had reported that mother was not
registered with the Cherokee tribe, but mother had ancestry
through Carlos Anthony P., who had never registered with the
tribe. Based on responses from the noticed tribes, the juvenile
court found that Adrian was not an Indian child.
As to Melody, DCFS had not been able to mail ICWA
notices for her due to “technical” problems. Although DCFS
thought that the juvenile court could rely on the notices sent for
Adelia to make an ICWA finding as to Melody, DCFS suggested it
would be more prudent to send notices for Melody. The juvenile
court agreed with the suggestion and ordered DCFS to notice the
appropriate tribes, the BIA, and the Department of the Interior.
And, when the juvenile court asked for clarification whether
mother had listed all appropriate tribes on her ICWA-020 form,
mother’s counsel said she would have to reconfirm with her client
but “that should be everything.”
From about March to April 2022, a social worker tried to
interview mother about her Indian heritage, but mother did not
make herself available. Mother finally contacted the social
worker in April 2022 and confirmed that the information she had
previously given was accurate. Mother said she did not speak to
her father, maternal grandfather Carlos Anthony P., and did not
have a phone number for him but said he resided in Phoenix,
Arizona. Mother added that paternal great-grandmother’s name
5
was either Geraldine or Ladine L., and she had died in 2004.
Although mother said she would reach out to an uncle for more
information and would text the social worker, mother never
provided additional information and did not respond to the social
worker’s follow-up text.
In April 2022, DCFS mailed ICWA notices to the BIA,
Secretary of the Interior, and the tribes. The Choctaw Nation of
Oklahoma and Blackfeet tribes responded that they were unable
to locate Melody or her ancestors in its records and had therefore
determined she was not an Indian child. The Blackfeet tribe
added that Melody needed a blood quantum of 25 percent to be
eligible for enrollment in the tribe. DCFS received a return
receipt from the Secretary of the Interior.
On June 6, 2022, the juvenile court found it had no reason
to know that Melody was an Indian child. Then, on June 30,
2022, the juvenile court set a permanency plan hearing for
October 2022.
Mother now petitions from the setting of the permanency
plan hearing, contending that the juvenile court erred in finding
that ICWA did not apply.
DISCUSSION
I. Relevant law
Congress passed ICWA in 1978 “ ‘to protect the best
interests of Indian children and to promote the stability and
security of Indian tribes and families by the establishment of
minimum Federal standards for the removal of Indian children
from their families and the placement of such children in foster or
adoptive homes which will reflect the unique values of Indian
6
culture . . . .’ [Citation.]” (In re Isaiah W. (2016) 1 Cal.5th 1, 8
(Isaiah W.); see 25 U.S.C. § 1902.)
California adopted conforming legislation in 2006 (Sen. Bill
No. 678 (2005–2006 Reg. Sess.)), which was amended effective
January 1, 2019 (Assem. Bill No. 3176 (2017–2018 Reg. Sess.)).
As currently written, the law provides that the court and county
welfare department have an affirmative and continuing duty to
inquire whether a child for whom a petition may be filed is or
may be an “Indian child” (§ 224.2, subd. (a))––that is, an
“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); § 224.1, subd. (a) [adopting federal
definition]).
The state law duty to make an ICWA inquiry “begins with
the initial contact, including, but not limited to, asking the party
reporting child abuse or neglect whether the party has any
information that the child may be an Indian child.” (§ 224.2,
subd. (a).) If a child is removed from parental custody, the county
welfare department “has a duty to inquire whether that child is
an Indian child. Inquiry includes, but is not limited to, asking
the child, parents, legal guardian, Indian custodian, extended
family members, others who have an interest in the child, and
the party reporting child abuse or neglect, whether the child is, or
may be, an Indian child and where the child, the parents, or
Indian custodian is domiciled.” (§ 224.2, subd. (b).) Further, at
the first appearance in court of each party, “the court shall ask
each participant present in the hearing whether the participant
knows or has reason to know that the child is an Indian child”
and “shall instruct the parties to inform the court if they
7
subsequently receive information that provides reason to know
the child is an Indian child.” (§ 224.2, subd. (c).)
If the initial inquiry provides “reason to believe” that an
Indian child is involved in a proceeding––that is, if the court or
social worker “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”––then the court or social worker
“shall make further inquiry” regarding the child’s possible Indian
status as soon as practicable. (§ 224.2, subd. (e).)
Further inquiry “includes, but is not limited to, all of the
following: (A) Interviewing the parents, Indian custodian, and
extended family members . . . . (B) Contacting the Bureau of
Indian Affairs and the State Department of Social Services . . . .
[and] (C) Contacting the tribe or tribes and any other person that
may reasonably be expected to have information regarding the
child’s membership, citizenship status, or eligibility.” (Ibid.)
If there is “reason to know” a child is an Indian child, the
agency shall provide notice to the relevant tribes and agencies in
accordance with section 224.3, subdivision (a)(5). (§ 224.2,
subd. (f).) There is “reason to know” a child is an Indian child if
any one of six statutory criteria is met—i.e., if the court is
advised that the child “is an Indian child,” the child’s or parent’s
residence is on a reservation, the child is or has been a ward of a
tribal court, or either parent or the child possess an identification
card indicating membership or citizenship in an Indian tribe.
(§ 224.2, subd. (d).)
If the juvenile court finds that “proper and adequate
further inquiry and due diligence as required in this section have
been conducted and there is no reason to know whether the child
is an Indian child,” the court may make a finding that ICWA does
8
not apply to the proceedings, “subject to reversal based on
sufficiency of the evidence.” (§ 224.2, subd. (i)(2).)
We recently held In re Ezequiel G. (2022) 81 Cal.App.5th
984, 1004, that whether there is reason to know a child is an
Indian child is fundamentally a factual inquiry reviewed for
substantial evidence. Under that standard of review, we “should
‘not reweigh the evidence, evaluate the credibility of witnesses, or
resolve evidentiary conflicts,’ ” but should uphold the lower
court’s determinations “ ‘if . . . supported by substantial evidence,
even though substantial evidence to the contrary also exists and
the trial court might have reached a different result had it
believed other evidence.’ ” (In re Caden C. (2021) 11 Cal.5th 614,
640.) However, whether a “ ‘proper and adequate further inquiry
and due diligence’ ” has been conducted is reviewed for abuse of
discretion. (Ezequiel G., at p. 1004.)
If we conclude that the juvenile court erred in finding that
an adequate ICWA inquiry was conducted, we will return the
case to the juvenile court only if the error was prejudicial—that
is, if “the record contains information suggesting a reason to
believe that the child may be an ‘Indian child’ within the
meaning of ICWA, such that the absence of further inquiry was
prejudicial to the juvenile court’s ICWA finding.” (In re Dezi C.
(2022) 79 Cal.App.5th 769, 779, review granted Sept. 21, 2022,
S275578.) This test is “outcome focused,” asking whether “it is
reasonably probable that an agency’s error in not conducting a
proper initial inquiry affected the correctness (that is, the
outcome) of the juvenile court’s ICWA finding,” and remanding
only in those cases “in which the record gives the reviewing court
a reason to believe that the remand may undermine the juvenile
court’s ICWA finding.” (Id. at pp. 781–782.)
9
II. No prejudicial error occurred
Mother’s responses to the initial ICWA inquiry
unquestionably gave rise to a reason to believe that Melody might
be an Indian child. Mother nonetheless contends that the
juvenile court and DCFS failed to conduct an adequate further
inquiry into whether Melody is an Indian child for two reasons.
First, DCFS did not try to obtain her registration number or to
confirm it was no longer federally recognized. Second, the
juvenile court erroneously relied on notices in the siblings’ cases
in making its ICWA finding. The minor, Melody, has submitted a
letter brief raising a third reason why reversal is required: DCFS
made no meaningful effort to locate maternal grandfather. None
of these purported reasons presents a ground for reversal.
As to mother’s first contention that DCFS did not try to
obtain her registration number, there’s no indication in the
record that this information was available. Although mother said
she had Indian ancestry through three tribes and had been
registered with a tribe, she never identified the tribe with which
she claimed to have been registered or provided her registration
number. At a hearing, mother’s attorney said she would confirm
with mother that all tribes were listed but “that should be
everything.” When the social worker asked mother for
information about her Indian ancestry, mother did not provide
her registration number and said she had no additional
information, raising the reasonable inference she did not know
the number. Nor has mother provided her registration number
on appeal. Since there is no indication that anyone else knows
the registration number, it is clear that even if DCFS had made
further inquiry, that inquiry would not have yielded the missing
information.
10
Mother cannot now complain that DCFS failed to ask for
information uniquely within her control. If mother had her
registration number, then she should have given it to DCFS.
Withholding such information would be improper gamesmanship.
ICWA “is not a ‘get out of jail free’ card dealt to parents of non-
Indian children, allowing them to avoid a termination order by
withholding secret knowledge, keeping an extra ace up their
sleeves. Parents cannot spring the matter for the first time on
appeal without at least showing their hands. 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.” (In re Rebecca R. (2006) 143 Cal.App.4th
1426, 1431.)
For this reason, we are similarly unpersuaded that DCFS
and the juvenile court erred by failing to ascertain whether
mother’s registration and/or the tribe she had been registered
with were no longer federally recognized.4 Despite repeated
inquiries by DCFS, mother never provided her registration
number or indeed clearly identified the tribe with which she had
been registered.
Second, mother argues that the juvenile court erred in
relying on notices sent in Melody’s siblings’ cases to make its
ICWA finding in Melody’s case. That is incorrect. At the juvenile
court’s direction, DCFS sent notices to the appropriate tribes, the
4 Mother said that her registration was not federally
recognized, but her opening brief on appeal says that her tribe
was no longer federally recognized.
11
BIA, and the Department of the Interior in Melody’s case.5 The
Blackfeet and Choctaw Nation of Oklahoma tribes responded to
that notice, stating they were unable to find Melody on their
tribal rolls. The Blackfeet tribe added that the blood quantum
requirement for enrollment was 25 percent Blackfeet blood, so
Melody was “not eligible for enrollment.”
Finally, Melody argues that the ICWA inquiry was
inadequate because DCFS did not try to locate maternal
grandfather, Carlos Anthony P. However, DCFS did ask mother
about maternal grandfather, and mother said she didn’t speak to
him or have a phone number for him, although she thought he
lived in Phoenix, Arizona. Although mother said she would reach
out to an uncle for more information, she never gave any
additional information to the social worker and did not respond to
the social worker’s follow-up text. Also, maternal grandmother
had reported in sibling Adrian’s case that maternal grandfather
was not registered with a tribe and had never lived on a
reservation. Therefore, DCFS did comply with any further duty
of inquiry about maternal grandfather. (See, e.g., In re Q.M.
(2022) 79 Cal.App.5th 1068, 1082–1083 [father said he might
have Cherokee heritage but refused to provide further
information to DCFS]; In re A.M. (2020) 47 Cal.App.5th 303, 323
[agency’s failure to interview maternal relatives was reasonable
where mother could not provide information about maternal
5 We grant DCFS’s motion, filed on October 14, 2022, to
augment the record or to take judicial notice of additional
documents, including the cover page of the ICWA-030 notice in
Melody’s case. (See generally Evid. Code, § 452, subd. (d).)
Although DCFS located the notice’s cover page, the notice itself is
missing.
12
relatives and no maternal relative appeared at any hearing or
participated in the matter]; In re K.M. (2009) 172 Cal.App.4th
115, 119 [where agency “attempted on several occasions to elicit
further information from the child’s family, but was unsuccessful
due to the family’s hostility” toward agency, agency “did all that
can or should be reasonably expected of it to meet its obligation to
the child, to the family, to the tribes and to the court”]; compare
In re G.H. (2022) 84 Cal.App.5th 15, 23–24, [father identified
paternal grandmother as information source and contacted her
through social media].)
But even if error occurred in the further inquiry into
Melody’s possible Indian ancestry, the notices sent in Melody’s
siblings’ cases and the attendant findings that ICWA did not
apply to the siblings demonstrate that no prejudicial error
occurred in Melody’s case.6 (See generally In re Dezi C., supra, 79
Cal.App.5th at pp. 781, rev.gr. [remand required only if error was
prejudicial, meaning information suggests a reason to believe
child may be an Indian child].) As to sibling Adelia, the Cherokee
Nation, Blackfeet Tribe, the Eastern Band of Cherokee Indians
Tribe, the Choctaw Nation of Oklahoma, the Morongo Band of
Mission Indians, and the Mississippi Band of Choctaw Indians
reported that Adelia was either not enrolled or not eligible for
enrollment in their tribes. As to sibling Adrian, the notices
contained mother’s name and date of birth, maternal
grandmother’s name, maternal grandfather’s name (Carlos
6 The augmentation request included a jurisdiction report
from sibling Adrian’s case. According to it, maternal
grandmother reported that maternal great-grandmother was
never registered with a tribe and had never lived on a
reservation.
13
Anthony P.) and date of birth, and maternal great-grandmother’s
name (Ladine L.). The notice further stated that James L. had
lived on a Cherokee reservation. However, Adrian was also found
not to be an Indian child. Because at least two of Melody’s
siblings were found not to be Indian children after notices had
been sent to the tribes, no prejudicial error occurred in Melody’s
case regarding the ICWA finding as to her.
Further, Melody was placed with a maternal aunt. Where
a child is placed with family holding Indian roots, ICWA’s
purpose—preventing removal of Indian children from their
Indian families—is not implicated. (In re J.W. (2022) 81
Cal.App.5th 384, 390; see also In re S.S. (2022) 75 Cal.App.5th
575, 582 [family members seeking placement of children have
incentive to raise any Indian ancestry].)
Given all this, we conclude that the further ICWA inquiry
conducted here yielded reliable information that Melody is not an
Indian child within the meaning of ICWA, as the juvenile court
found, and, in any event, prejudice from any error has not been
shown.
14
DISPOSITION
The petition is denied. The stay of the permanency plan
hearing is lifted.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
I concur:
EGERTON, J.
15
LAVIN, J., Concurring:
The Department of Children and Family Services
(Department) and the juvenile court should have made a better
record of the Department’s investigative efforts to determine the
child’s possible Indian ancestry. Nevertheless, I agree that the
petition should be denied and the stay should be lifted.
LAVIN, J.
1