Filed 6/28/24 In re B.F. CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re B.F., a Person Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E082541
Plaintiff and Respondent, (Super. Ct. No. INJ014318)
v. OPINION
J.F.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Mona Nemat, Judge.
Affirmed.
Minh C. Tran, County Counsel, Teresa K.B. Beecham, and Julie K. Jarvi, Deputy
County Counsels, for Plaintiff and Respondent.
Jill Smith, under appointment by the Court of Appeal, for Defendant and
Appellant.
1 I.
INTRODUCTION
This is a second appeal by J.F. (Father) involving the Indian Child Welfare Act of 1 1978 (ICWA) (25 U.S.C. § 1901 et seq.). In his first appeal, case No. E079928, we
conditionally reversed the juvenile court’s legal guardianship order as to Father’s
daughter B.F. and remanded the matter for the Riverside County Department of Public
Social Services (DPSS) and the court to comply with its duty of initial inquiry under state
law implementing the ICWA. In this appeal, Father, once again, contends that upon
remand, neither DPSS nor the juvenile court complied with the ICWA and related state
ICWA statutes because no inquiry was made of some known relatives, and thus there is 2 insufficient evidence to support the court’s finding ICWA did not apply.
We conclude Father forfeited his objection in this appeal to ICWA inquiry
compliance, because it was raised in his previous appeal, with a conditional remand to
correct the ICWA deficiencies, and Father failed to object again to ICWA compliance in
the lower court during the remittitur hearings. We also find any error on remand was
harmless. We therefore affirm the finding that ICWA does not apply and the legal
guardianship order as to B.F.
1 “[B]ecause ICWA uses the term ‘Indian,’ we do the same for consistency, even though we recognize that other terms, such as ‘Native American’ or ‘indigenous,’ are preferred by many.” (In re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1.) 2 A.M. (Mother) is not a party to this appeal.
2 II. 3 FACTUAL AND PROCEDURAL BACKGROUND
On April 13, 2020, DPSS filed a petition on behalf of B.F. and her half-sisters 4 R.N. and E.M. pursuant to Welfare and Institutions Code section 300, subdivisions (b)
(failure to protect) and (d) (sexual abuse) based, in part, on Mother’s extensive history
with DPSS and of abusing controlled substances, Mother’s boyfriend having placed a
hidden camera in the family bathroom, Mother’s knowledge her boyfriend had a sexual
addiction and had allowed him to supervise the girls, Father’s mental health issues, and
Father’s history of abusing controlled substances and with DPSS. The girls had different
fathers, and at the time, R.N. was 15 years old, B.F. was nine years old, and E.M. was 5 five years old.
According to the ICWA-010(A) inquiry form attached to the petition, neither
parent gave reason to believe B.F. is or may be an Indian child. On February 27, 2020,
Mother denied having any Native American ancestry. On April 9, 2020, Father denied
having any Native American ancestry.
3 A summary of the factual and procedural background up until the matter was remanded to the superior court is taken from Father’s first appeal, case No. E079928 (In re B.F. (April 18, 2023, E079928 [nonpub. opn.].) 4 All future statutory references are to the Welfare and Institutions Code unless otherwise stated. 5 B.F.’s half-sisters are not subjects of this appeal.
3 The girls were taken into protective custody on April 10, 2020. Mother reported
that there were no family members to consider for placement other than E.M.’s father.
R.N. and B.F. were placed into foster care, while E.M. remained in her father’s custody.
The detention hearing was held on April 14, 2020, which was conducted
telephonically due to the pandemic. Mother’s counsel informed the juvenile court that
Mother had no Native Indian heritage and that Mother had filled out an ICWA-020 form
that was ready to email to the court. The court asked that Mother’s counsel bring the
form to the next court hearing. Father’s counsel also informed the court that Father had
no Native American heritage. The juvenile court directed the parents to submit an
ICWA-020 form for the next hearing date and found that “based on the information
currently known,” ICWA did not apply. The court also found that DPSS had conducted a
sufficient inquiry regarding whether the child may have Indian ancestry and that ICWA
did not apply.
On April 23, 2020, Mother denied having any Native American ancestry. Father
made himself unavailable to the social worker, as such the social worker was unable to
inquire of Father as to his Native American heritage. Mother reported that her parents
were deceased. She claimed the maternal grandmother committed suicide when she was
31 years old and she (Mother) was 15 years old. Mother had two sisters and one brother
and a relationship with her brother. She spoke with her brother on the telephone at least
once a month. Mother claimed that she had no local family members, but also reported
that the family members that were local were not good role models for her children.
4 At a hearing on June 16, 2020, a maternal aunt appeared at the hearing and
indicated that she was interested in placement of the children in her care.
At the contested jurisdictional/dispositional hearing on August 19, 2020, the
juvenile court found that ICWA did not apply. The court also found that a sufficient
inquiry had been conducted regarding whether the child may have Native American
ancestry, and that B.F. was not an Indian child. The court found true the allegations in
the second amended petition and declared B.F. a dependent of the court. Father was
denied reunification services. The parents were ordered to disclose to DPSS the names,
residency, and any known identifying information of any maternal and paternal relatives.
The court further determined that DPSS had made “diligent efforts to identify, locate, and
contact the child’s . . . relatives, except those determined to be inappropriate to contact
due to their involvement with the family or domestic violence.”
A second cousin was contacted about relative placement, but she stated that she
did not wish to have placement of B.F. and R.N. An older half-sister of R.N.’s was also
contacted about placement, but R.N. did not want to be placed with her.
On September 23, 2020, May 28, 2021, December 22, 2021, and June 15, 2022,
Mother denied having any Native American ancestry or tribal affiliation. On October 5,
2020, May 19, 2021, December 22, 2021, and June 20, 2022, Father denied having any
Native American ancestry or tribal affiliations.
5 B.F. was content with her current placement and wanted to remain with her
caregivers as her “‘forever home.’” She was thriving in her placement as indicated by
her improvement in behaviors and demeanor. She, however, desired to continue to have
visitation with her mother and Father. She visited with Father once a month and looked
forward to seeing him. Mother and Father did not provide any relatives for placement of
B.F. several times when asked by the social worker. B.F.’s caregiver was willing to
provide permanency in the form of legal guardianship.
On March 10, 2022, the juvenile court found that ICWA did not apply to B.F.
DPSS recommended that the juvenile court establish legal guardianship with
B.F.’s caregivers. On September 20, 2022, the juvenile court ordered B.F.’s permanent
plan to be legal guardianship and terminated the dependency. The parents were ordered
to have visitation a minimum of twice a month for two hours each as directed by the legal
guardians.
Father subsequently appealed. He argued DPSS failed to comply with its duty of
inquiry with respect to ICWA and therefore there was insufficient evidence to support the
juvenile court’s finding that ICWA did not apply. (In re B.F., supra, E079928.) We
agreed, conditionally reversed the legal guardianship orders, and remanded the matter for
ICWA compliance. We explained the error was not harmless because the record
indicated (1) the parents had not filed an ICWA-020 form, (2) the juvenile court had not
personally inquired of the parents of their possible Indian ancestry at their first
appearance, (3) DPSS had not inquired of any maternal family members, such as
6 Mother’s sisters and brother, whether they had reason to know if B.F. might have Indian
ancestry, (4) DPSS had not inquired of a second maternal cousin and R.N.’s older half-
sibling, and (5) DPSS had not inquired of Father concerning his relatives. (In re B.F.,
supra, E079928.)
Following remand, on June 27, 2023, the juvenile court reappointed the attorneys
for the parents and ordered DPSS to complete a further ICWA inquiry.
DPSS made contact with Father on July 26, 2023. Father denied having any
Native American ancestry or tribal affiliation, and stated, “‘no never had any of that.’”
Father then ended the call without further discussion.
At a hearing on July 27, 2023, the juvenile court conducted an ICWA inquiry of 6 Father. In response to the court’s query, Father stated that his mother’s grandmother
(the child’s great, great grandmother) was a Cherokee Indian. When the court asked
Father whether he had further information, he stated his mother’s last name and noted
that his mother was adopted. The court continued the hearing to August 17, 2023, for
DPSS to contact Father to conduct a further ICWA inquiry and to obtain additional
information so they could contact the Cherokee Nation.
DPSS attempted to contact Father and Mother on August 10, 2023, to follow up
with the ICWA inquiry but was unsuccessful. DPSS made contact with Father on August
11, 2023. At this time, Father stated that he was not registered with or affiliated with any
tribe, but claimed his “mother’s biological mother had affiliations with Cherokee Nation
6 Mother was not present in court.
7 of Oklahoma.” He provided DPSS with his mother’s name (G.B.) and alias names
(G.P.K. and G.F.) and date of birth (December 26, 1925). He noted that his mother, who
was deceased, was adopted and that the Native American ancestry was through her
biological mother. He did not know the name of his biological grandmother, but he
assumed her last name was “Bash.” He had no other information regarding Native
American ancestry for his family, and he did not know of any other family members
having affiliations with Native American tribes. He provided the names and dates of
birth of his brother and sister. He stated that his brother was born on March 30, 1960,
and his sister on October 5, 1947, but he had no contact information for them as he had
not spoken with them since their mother’s passing. He denied that anyone in his family
had ever been registered with a tribe as far as he knew, as his mother, “‘did not like to
speak about it.’”
DPSS also made contact with Mother on August 11, 2023. Mother again denied
having any Native American ancestry or tribal affiliation in her family. DPSS made
contact with Mother again on August 16, 2023, to further inquire about Native American
ancestry or tribal affiliations for maternal relatives. Mother explained that her three
siblings were not of blood relation because she was adopted as a child. She noted that
one sister (D.A.) was deceased and the whereabouts of her other sister (K.A.) were
unknown. She only remained in contact with her brother, E.A. (the child’s maternal
uncle), from time to time. DPSS noted that Mother had no blood-related family members
available to “make determination for linkage to Native American Ancestry.”
8 On August 16, 2023, DPSS made contact with maternal uncle E.A. E.A. reported
that he did not know of any Native American ancestry or tribal affiliations in his
immediate family. He, however, noted that there “may be tribal affiliations” for his
grandmother (C.A.), but he was unsure of which tribes and he did not have her birthdate.
He further stated that his grandmother was deceased and there were no other family
members available to speak with, “as a large portion of his family has unfortunately
passed.”
At the scheduled August 17, 2023, hearing, the juvenile court directed DPSS to
send notices to the Cherokee tribes. On this same day, DPSS sent an informal ICWA
inquiry to the Cherokee Nation of Oklahoma (Cherokee Nation), the Eastern Band of
Cherokee Indians (Eastern Band), the United Keetoowah Band of Cherokee Indians
(United Keetoowah Band), and the Bureau of Indian Affairs (BIA) and notified them of
the dependency proceedings. The informal inquiry noted all the known names and dates
of birth for the paternal relatives and the relevant ICWA information provided by Father
and Mother.
On August 18, 2023, the Cherokee Nation responded that B.F. was not an Indian
child based on the information provided. The United Keetoowah Band also responded
and indicated that B.F. was not an Indian child.
On September 26, 2023, the matter was continued to allow for the ICWA noticing
process to be completed as DPSS was waiting for a response back from the Eastern Band.
The matter was continued to October 30, 2023.
9 At the October 30, 2023, hearing, DPSS’s counsel noted the matter was continued
to allow a response back from the Eastern Band and that it had been over 60 days since
informal inquiry had been sent. DPSS’s counsel asked the juvenile court to find ICWA
did not apply as to that tribe and the child, and to reinstate the prior orders. Father’s
counsel requested the court find that ICWA may apply and to continue the matter again,
even though 60 days had passed. Father’s counsel noted there was still one tribe that they
had not heard from and believed it was important for the court to hear from them. After
explaining this was the third hearing they had on the remittitur and that it had been more
than 60 days since the last ICWA inquiry letter had been sent, the court found ICWA did
not apply to B.F. and reinstated all prior orders. Father timely appealed.
III.
DISCUSSION
As argued in the first appeal, Father contends in this second appeal that the
juvenile court and DPSS again failed to comply with ICWA by not adequately inquiring
and investigating B.F.’s Native American ancestry, and thus there is insufficient evidence
to support the court’s finding ICWA did not apply. Father argues such deficiencies
include DPSS failing to inquire of a second cousin, older half-sibling R.N., and maternal
aunt I.O. who had appeared at an early hearing in June 2020. DPSS responds that Father
forfeited his contention in this second appeal by failing to raise any ICWA inquiry
deficiency in the court below. Alternatively, DPSS asserts the court did not abuse its
10 discretion in finding sufficient ICWA inquiry and that any error is harmless. We agree
with DPSS that Father forfeited his claims in this second appeal.
“In 1978 Congress enacted the ICWA to ‘protect the best interests of Indian
children and to promote the stability and security of Indian tribes and families.’ (25
U.S.C. § 1902.) The ICWA recognizes that ‘“the tribe has an interest in the child which
is distinct from but on a parity with the interest of the parents.”’ [Citation.] ‘The ICWA
presumes it is in the best interests of the child to retain tribal ties and cultural heritage and
in the interest of the tribe to preserve its future generations, a most important resource.
[Citation.] Congress has concluded the state courts have not protected these interests and
drafted a statutory scheme intended to afford needed protection.’ [Citation.]” (Dwayne
P. v. Superior Court (2002) 103 Cal.App.4th 247, 253; accord, In re X.V. (2005) 132
Cal.App.4th 794, 801-802 (X.V.).)
Therefore, Federal regulations implementing ICWA require that state courts, at the
commencement of a juvenile dependency proceeding, “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.” (25 C.F.R. § 23.107(a)
(2022).) Under California law, the court and county child welfare department also “‘have
an affirmative and continuing duty to inquire whether a child,’ who is the subject of a
juvenile dependency petition, ‘is or may be an Indian child.’ [Citations.] The child
welfare department’s initial duty of inquiry includes ‘asking the child, parents, legal
guardian, Indian custodian, extended family members, others who have an interest in the
11 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).)” (In re Austin J. (2020) 47 Cal.App.5th 870, 883.) State courts 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.” (25 C.F.R. § 23.107(a) (2022).)
Here, Father seeks reversal based on noncompliance with ICWA’s inquiry
requirements. DPSS argues Father forfeited his ICWA objection by not raising it at the
October 30, 2023, remittitur hearing. Generally, “‘[a] party forfeits the right to claim
error as grounds for reversal on appeal when he or she fails to raise the objection in the
trial court. [Citations.] Forfeiture, also referred to as “waiver,” applies in juvenile
dependency litigation and is intended to prevent a party from standing by silently until
the conclusion of the proceedings.’” (In re C.M. (2017) 15 Cal.App.5th 376, 385.)
However, “[t]he generally accepted rule in dependency cases is that the forfeiture
doctrine does not bar consideration of ICWA notice issues on appeal.” (In re Alice M.
(2008) 161 Cal.App.4th 1189, 1195.) But, “[w]hen a case is remanded to the juvenile
court for the purpose of curing ICWA notice defects and the parent is represented by
counsel at the postremand compliance hearing and counsel raises no objection to new
ICWA notices, an exception to the general rule against forfeiture may apply.” (In re Z.W.
(2011) 194 Cal.App.4th 54, 64 (Z.W.); see also In re Amber F. (2007) 150 Cal.App.4th
1152, 1156; X.V., supra, 132 Cal.App.4th at p. 804.) “Balancing the minor’s interest in
12 permanency and stability against the tribes’ rights under ICWA may require a different
result in such a case.” (Z.W., supra, at p. 64.)
As the court in X.V., supra, 132 Cal.App.4th at pages 804-805, explained, “We are
mindful that the ICWA is to be construed broadly [citation], but we are unwilling to
further prolong the proceedings for another round of ICWA notices, to which the parents
may again object on appeal. . . . We do not believe Congress anticipated or intended to
require successive or serial appeals challenging ICWA notices for the first time on appeal
. . . ‘[a]t some point, the rules of error preservation must apply or parents will be able to
repeatedly delay permanence for children through numerous belated ICWA notice
appeals and writs.’”
In this second appeal, Father seeks reversal based on the juvenile court failing to
inquire of a second cousin, half-older sibling R.N., and maternal aunt I.O. regarding their
Native American ancestry, as ordered by this court. Father previously raised an ICWA
inquiry challenge in his first appeal, and we agreed to reversal and remand to allow
further ICWA compliance.
Because after remand from the first appeal, neither Father nor any other party at
the October 30, 2023, remittitur hearing objected to DPSS’s failure to inquire of these
relatives or the court’s finding ICWA did not apply, Father forfeited his ICWA inquiry
objection here in this appeal. (Z.W., supra, 194 Cal.App.4th at p. 64; see also In re
Amber F., supra, 150 Cal.App.4th at p. 1156; X.V., supra, 132 Cal.App.4th at p. 804.)
Furthermore, Father never even asserted in his first appeal that maternal aunt I.O. was not
13 contacted. After the first appeal, this case was remanded to the juvenile court for the
purpose of curing ICWA inquiry defects, and Mother and Father were represented by
counsel at the postremand compliance hearings. No one objected to the juvenile court’s
finding of ICWA compliance or that DPSS had not inquired of the above-noted relatives
at the postremand hearings. Therefore, the exception to the general rule against forfeiture
applies. (Z.W., supra, at p. 64.)
Although in Z.W. the exception to forfeiture was based on successive appeals to
ICWA notice challenges and involved termination of parental rights, whereas this case
concerns successive challenges to ICWA inquiry compliance and legal guardianship, the
forfeiture exception nevertheless applies here. The circumstances are sufficiently
analogous. The appellants in both cases repeated the same type of ICWA objections in
successive appeals and failed to object to any continuing ICWA deficiencies in the lower
court before bringing the subsequent appeal. Had the appellant here, as in Z.W., raised
his ICWA compliance objections in the juvenile court before bringing the instant appeal,
the ICWA deficiencies likely could have been addressed in the juvenile court, thus
avoiding another appeal and additional delay. We, therefore, conclude as the court did in
Z.W., supra, 194 Cal.App.4th 54, and In re Amber F., supra, 150 Cal.App.4th 1152, that
the forfeiture doctrine bars Father’s ICWA challenge in this appeal. Father should have
called any and all ICWA inquiry deficiencies to the attention of the juvenile court. “Had
an objection been made, the juvenile court could have addressed whatever deficiencies
existed before” ordering legal guardianship. (Z.W., supra, at p. 66.)
14 California courts should draw the line when parents fail to raise in the lower court
the same ICWA objection again at a remittitur hearing on remand, and then appeal again
based on the same objection raised in the previous appeal. “A line has to be drawn. At
some point, there must be finality to the ICWA noticing process.” (Z.W., supra, 194
Cal.App.4th at p. 67; see also X.V., supra, 132 Cal.App.4th at p. 798.) Balancing the
child’s interest in permanency and stability against the tribes’ rights under ICWA, in
X.V., the court found that, “forfeiture principles preclude a second appellate review in
such a case, as further delay harms the paramount interests of dependent children in
permanence and stability. The purposes of the ICWA are indeed commendable, but we
do not believe Congress envisioned or intended successive or serial appeals on ICWA
notice issues when, given a proper objection, they could easily be resolved during
proceedings on remand for the specific purpose of determining whether proper notice was
given.” (X.V., supra, at p. 798.) The X.V. court therefore affirmed the judgment
terminating parental rights based on forfeiture. Likewise, under the circumstances
presented here, Father forfeited his objection to ICWA inquiry compliance.
Furthermore, although we need not decide the issue of ICWA compliance on the
merits because Father forfeited the objection in this second appeal, we note it appears
from the record that the juvenile court inquired as to whether B.F. had Native American
ancestry and DPSS made a concerted effort to investigate B.F.’s Native American
ancestry by contacting the parents and the maternal uncle, and inquiring as to whether
B.F. had Native American ancestry. Inquiries were also sent to the Cherokee tribes and
15 the BIA, and two of the three Cherokee tribes responded that B.F. was not a Native
American tribe member or eligible for membership. In addition, it had been over 60 days
since an inquiry was sent to the Eastern Band (the third tribe that had not responded).
Moreover, based on information provided by the parents, it appeared that there
were no known relatives readily available for DPSS to further inquire of that would
provide meaningful information concerning B.F.’s Native American ancestry. (See In re
Benjamin M., supra, 70 Cal.App.5th at p. 744 [we held “in ICWA cases, a court must
reverse where the record demonstrates that the agency has not only failed in its duty of
initial inquiry, but where the record indicates that there was readily obtainable
information that was likely to bear meaningfully upon whether the child is an Indian 7 child”].) Father’s mother was deceased, Father had no contact information for his
siblings, Mother was adopted at birth, and Mother’s parents were deceased. Mother’s
siblings were not blood-related, one sister was deceased, the whereabouts of her other
sister were unknown, and Mother did not identify I.O. as her sister. In any event, Mother
had no blood relatives readily available for DPSS to inquire of whether B.F. has any
Native American ancestry.
Further, there is no indication in the record to show I.O., the second cousin and
half-sibling R.N. could provide meaningful information pertaining to whether B.F. has
7 We acknowledge that the Courts of Appeal are divided on how to review ICWA inquiry errors and that our Supreme Court is poised to resolve the issue. (See In re K.H. (2022) 84 Cal.App.5th 566, 611; In re Dezi C. (2022) 79 Cal.App.5th 769, 779-782, review granted Sept. 21, 2022, S275578.) Until the court does so, we will apply this court’s decision in Benjamin M.
16 Native American ancestry. The record before us demonstrates that any readily obtainable
information from the second cousin, half-sibling R.N., and maternal aunt I.O. was
unlikely to shed meaningful light on B.F.’s ICWA status. (In re Benjamin M., supra, 70
Cal.App.5th at p. 744.) Further, we are offered no reason in the record to believe that
these relatives would have better information about B.F.’s ancestry than Mother, Father,
and maternal uncle did. More likely may have been done to investigate B.F.’s ancestry
but it is unlikely that any additional inquiries would result in information, other than what
has already been provided, confirming that B.F. is not an Indian child and is not eligible
for membership in any Native American tribe.
We are mindful that ICWA is to be construed broadly, but under the totality of the
circumstances, we are unwilling to further prolong the proceedings and delay permanence
for the child, for another round of ICWA inquiries, to which Father may again object by
bringing a third appeal. “‘At some point, the rules of error preservation must apply or
parents will be able to repeatedly delay permanence for children through numerous
belated ICWA notice appeals and writs.’” (X.V., supra, 132 Cal.App.4th at pp. 804-805.)
Because, at this point, B.F.’s interest in permanency and stability outweigh the tribes’
potential rights under ICWA, we affirm the finding ICWA does not apply and
reinstatement of the legal guardianship order.
17 IV.
DISPOSITION
The juvenile court’s legal guardianship order as to B.F. is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
RAMIREZ P. J.
McKINSTER J.