In re M.L. CA4/2

Opinion

Filed 11/8/22 In re M.L. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 M.L. et al., Persons Coming Under the Juvenile Court Law.

SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E078915

Plaintiff and Respondent, (Super.Ct.Nos. J287762, J287763, J287764, J287765 v. & J287766)

M.L. et al., OPINION

Defendants and Appellants.

APPEAL from the Superior Court of San Bernardino County. Erin K. Alexander,

Judge. Affirmed.

Sarah Vaona, under appointment by the Court of Appeal, for Defendant and

Appellant, M.L.

Marisa L. D. Conroy, under appointment by the Court of Appeal, for Defendant

and Appellant, D.C.

1 Tom Bunton, County Counsel, and Dawn M. Martin, Deputy County Counsel, for

Plaintiff and Respondent.

INTRODUCTION

M.L. (father) appeals from an order terminating reunification services as to his

children, A.L., M.S.A.L., M.L., H.L., and M.L.L. (the children). He contends the matter

must be conditionally reversed and remanded because the juvenile court and the San

Bernardino County Children and Family Services (CFS) failed to comply with the initial

duty of inquiry under the Indian Child Welfare Act (25 U.S.C. § 1901 et. seq.) (ICWA)

and related California law (Welf. & Inst. Code, 1 § 224.2). D.C. (mother) filed a separate

brief on appeal and simply joins in father’s arguments. Respondent CFS has filed a

request to augment the record with postjudgment evidence showing it has made the

requisite inquiry and the court, after considering the results of that inquiry, found that

ICWA did not apply. Based on that evidence, CFS contends the appeal is moot and

should be dismissed. We affirm.

PROCEDURAL BACKGROUND

On January 13, 2021, CFS filed a section 300 petition on behalf of the children. 2

The petition alleged that the children came within section 300, subdivisions (b) (failure to

protect) and (j) (abuse of sibling).

1 All further statutory references will be to the Welfare and Institutions Code unless otherwise noted.

2 CFS filed a separate petition for each child; however, since the petitions contain the same allegations, we will simply refer to them as one petition. 2 The social worker filed a detention report and stated that she met with father and

mother (the parents), and father reported that mother and the children would be staying

with the paternal uncle in Victorville while he finished remodeling their house. Father

could not provide an address for the uncle, but provided the uncle’s contact information.

The social worker called the paternal grandmother (PGM), and she stated the parents

would be spending the night at her house in San Bernardino.

On January 14, 2021, the court held a detention hearing. The court asked the

parents if they had any Native American ancestry. Mother said no. However, father said,

“I’m still doing the testing for that. We will still have to clarify it, so no for now.” The

court asked father if he thought he may have heritage but just did not know what tribe.

Father replied, “Yes. That’s why we said no until we verify which one.” Father and

mother each filed an ICWA-020 form and marked the box stating, “I have no Indian

ancestry, as far as I know.” The court ordered the parents to engage in services, have

their home assessed, and drug/alcohol test that day, and the parents agreed. It then

continued the matter to January 20, 2021.

At the continued hearing on January 20, 2021, the court decided to keep the

children with the parents since the parents were following directions. It found the

children came within section 300 but detained them with the parents on the condition that

the parents continue to cooperate with CFS and test clean. The court advised the parents

that failure to test would be considered a positive test and that they were required to live

at a location approved by CFS, which was currently the PGM’s home.

3 Jurisdiction/Disposition

The social worker filed a jurisdiction/disposition report on February 17, 2021, and

reported that the parents and children were still residing at the PGM’s home. The social

worker also stated that ICWA did not apply, noting father and mother indicated on the

ICWA-020 forms that they did not have Indian ancestry.

The court held a contested jurisdiction/disposition hearing on April 26, 2021.

Father informed the court that he was now claiming Indian heritage in the Omeca tribe.

The court asked if it was a federally recognized tribe, and father said, “Yes, for Southern

California.” Father said he was not an enrolled member and was not sure if he was

eligible for enrollment. He said his ancestry was through his mother, but she was not

enrolled or eligible for enrollment. County counsel informed the court that there was “no

such tribe identified as O-m-e-c-a that [she] could find federally recognized or not.” She

added, “I was able to find the O-l-m-e-c tribe, but that’s a Mexican, not a North

American tribe.” The court stated, “Right now I don’t believe I have reason to know.

Father’s indicating heritage in a tribe that’s not federally recognized . . . .” Father’s

counsel informed the court, “[T]his is the first I’ve heard of it. I’ll have to talk to him

over lunch. See if there’s a new ICWA form he wants me to fill out. This is news to me.

I will try to get the Court more information after lunch.” Father subsequently appeared to

have a medical issue, so the matter was continued. At the continued hearings held on

June 9, 2021, and August 19, 2021, there was no further discussion regarding ICWA by

father. The juvenile court followed the social worker’s recommendation and found that

4 ICWA did not apply. It also declared the children dependents, removed them from the

custody of the parents, and ordered reunification services.

Six-month Status Review

The social worker filed a six-month status review report on February 18, 2022,

recommending that reunification services be terminated and a section 366.26 hearing be

set. The social worker reported that the parents did not accept the reasons why CFS was

involved with their family. The social worker continued to state that ICWA did not

apply, but also reported that “[n]oticing requirements under ICWA have been initiated.”

The court held a contested six-month status review hearing on April 28, 2022.

County counsel noted they were actually past the 12-month review date and asked the

court to follow the social worker’s recommendations, noting the parents had not

completed their case plans. The court stated that the parents had minimally engaged in

their case plans, that mother failed to recognize the concerns or risks in the case, and

father did not accept responsibility for the reasons for the dependency case. The court

also commented that the parents had every opportunity to engage in the process and

reunify, but it was clear they were “more invested in fighting their perceived grievances

with the system than they are with reunifying with the children.” The court adopted the

majority of the social worker’s recommended findings and orders, including terminating

reunification services and setting a section 366.26 hearing. The court found it would be

in the best interests of the children to consider terminating parental rights at the section

366.26 hearing. It then set a permanent plan review hearing (PPR) for October 28, 2022.

The court did not adopt the social worker’s recommended finding that ICWA did not 5 apply. Rather, it stated, “I will order the agency, particularly if we’re in the process of

contacting relatives for potential placements, to make sure to make ICWA inquiry of any

known relatives. I believe the case may have originated under the old process, so we’ll

need to document that we’ve spoken to the grandmother that currently has the kids, as

well as any other known relative, and I’ll ask that that be included in the PPR report, and

the parents have been ordered back, that’s October the 28th at 8:30.”

That same day, father and mother filed Notices of Appeal with regard to the

termination of reunification services.

DISCUSSION

Father Has Failed to Demonstrate Error

Father3 argues that CFS and the court failed to comply with the initial duty of

inquiry, asserting that he indicated possible Native American ancestry through his

mother, and CFS did not ask the PGM or the paternal uncle about this potential ancestry,

even though it had their contact information. Father claims that since CFS “never asked

these readily available relatives about possible Native American ancestry . . . the juvenile

court’s finding that ICWA did not apply was unsupported by substantial evidence.”

Thus, he contends the matter must be reversed and remanded for CFS to inquire of the

PGM and paternal uncle, and any other relatives who may become available, regarding

whether the children may be Indian children. CFS requests that we augment the record

with postjudgment evidence which shows the social worker spoke with paternal relatives,

3 Since mother simply joins in father’s arguments, this opinion will just refer to father as the proponent of the arguments on appeal, for the sake of simplicity. 6 pursuant to the court’s April 28, 2022 order, and they all denied Indian ancestry. It

argues this evidence renders father’s appeal moot. CFS also points out that father

appealed immediately after the April 28, 2022 hearing, prior to CFS having time to

actually comply with the court’s order. We affirm the judgment and deny the request to

augment the record as unnecessary.

A. Father Has Failed to Affirmatively Demonstrate Error with Regard to the

Termination of Services

At the outset, we observe that father’s notice of appeal (Jud icial Council Forms,

form JV-800), filed on April 28, 2022, indicates he was appealing only from the order

entered that day terminating his reunification services. Under the heading, “I appeal from

the findings and orders of the court (specify date of order or describe order),” father

wrote, “Termination of family reunification services on 4-28-22.” Under the catchall box

for, “Other appealable orders relating to dependency (specify),” he similarly wrote,

“Termination of family reunification services 4/28/22.”4

“Perhaps the most fundamental rule of appellate law is that the judgment

challenged on appeal is presumed correct, and it is the appellant’s burden to affirmatively

demonstrate error.” (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573; see In re

A.L. (2022) 73 Cal.App.5th 1131, 1161 [“ ‘ “it is [appellant’s] burden on appeal

to affirmatively demonstrate error—it will not be presumed.” ’ ”].) Father has not raised

any issue in his brief regarding the termination of reunification services. Consequently,

4 Mother checked the same boxes and wrote the same things as father on her notice of appeal. 7 he has not demonstrated error with regard to the termination of his services, and it will

not be presumed here.

B. Father Has Failed to Affirmatively Demonstrate Error As to ICWA

Father contends that we should reverse the court’s finding that ICWA did not

apply since CFS and the court failed to comply with the initial duty of inquiry. Even if

we liberally construe the notice of appeal to include ICWA, we conclude that father has

failed to demonstrate error.

1. Relevant Law Regarding ICWA

ICWA establishes minimum federal standards that state courts are required to

follow before they may lawfully place an Indian child in foster care or terminate parental

rights to an Indian child. (25 U.S.C. §§ 1902, 1912(a); In re Isaiah W. (2016) 1 Cal.5th

1, 7 (Isaiah W.); In re D.S. (2020) 46 Cal.App.5th 1041, 1048 (D.S.).) ICWA requires

that notice of the state court proceedings be given to Indian tribes “where the court knows

or has reason to know that an Indian child is involved, . . .” (25 U.S.C. § 1912(a); see

Isaiah W., at p. 8; In re Benjamin M. (2021) 70 Cal.App.5th 735, 740-741.) ICWA’s

notice requirement, which is also codified in California law (§ 224.3), “enables a tribe to

determine whether the child is an Indian child and, if so, whether to intervene” in the

state court proceeding or exercise its own jurisdiction in the matter. (Isaiah W., at p. 5;

see In re Y.W. (2021) 70 Cal.App.5th 542, 551.) The tribe has the right to determine

whether the child is eligible for membership and, thus, whether the child is an Indian

child. (In re K.T. (2022) 76 Cal.App.5th 732, 742.)

8 Although “ICWA itself does not impose a duty on courts or child welfare agencies

to inquire as to whether a child in a dependency proceeding is an Indian child,” federal

regulations implementing ICWA “require that state courts ‘ask each participant in an

emergency or voluntary or involuntary child-custody proceeding whether the participant

knows or has reason to know that the child is an Indian child.’ [Citation.] The court

must also ‘instruct the parties to inform the court if they subsequently receive information

that provides reason to know the child is an Indian child.’ ” (In re Austin J. (2020) 47

Cal.App.5th 870, 882-883 (Austin J.); see 25 C.F.R. § 23.107(a) (2022).)

California law imposes a similar duty of inquiry on courts. The juvenile court and

CFS have “an affirmative and continuing duty to inquire whether a child for whom a

petition under Section 300 . . . may be or has been filed, is or may be an Indian child.”

(§ 224.2, subd. (a); see Isaiah W., supra, 1 Cal.5th at pp. 9, 11-12.) The Welfare and

Institutions Code “creates three distinct duties regarding ICWA in dependency

proceedings. First, from the [department’s] initial contact with a minor and his family,

the statute imposes a duty of inquiry to ask all involved persons whether the child may be

an Indian child. [Citation.] Second, if that initial inquiry creates a ‘reason to believe’ the

child is an Indian child, then the [department] ‘shall make further inquiry regarding the

possible Indian status of the child, and shall make that inquiry as soon as practicable.’

[Citation.] Third, if that further inquiry results in a reason to know the child is an Indian

child, then the formal notice requirements of section 224.3 apply.” (D.S., supra, 46

Cal.App.5th at p. 1052; see § 224.2.) The agency’s duty of inquiry includes asking

9 “extended family members” whether they know or have reason to know that the child is

an Indian child. (§ 224.2, subd. (b).)

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 not

apply to the proceedings, subject to reversal based on sufficiency of the evidence.”

(§ 224.2, subd. (i)(2).) A juvenile court’s finding that ICWA does not apply includes an

implicit finding that social workers fulfilled their duty of inquiry. (Austin J., supra, 47

Ca1.App.5th at p. 885.)

2. The Record Shows the Court Ordered CFS to Inquire Further

Father claims the court’s finding that ICWA did not apply should be reversed

because CFS and the court failed to discharge the duty of initial inquiry, specifically by

not interviewing the PGM and the paternal uncle. However, father has failed to

demonstrate error.

Both parents denied Indian ancestry at the beginning of the case in January 2021.

Father subsequently claimed he had Indian heritage in the Omeca tribe, but was not an

enrolled member and was not sure if he was eligible for enrollment. County counsel

informed the court there was no federally recognized tribe named Omeca, and thus the

court stated it had no reason to know father had Indian heritage. At the contested

jurisdiction/disposition hearing in August 2021, the juvenile court found ICWA did not

apply.

10 However, although the court initially made a finding that ICWA did not apply at

the recent contested six-month status review hearing on April 28, 2022, it ordered CFS to

inquire further about potential Indian ancestry. Specifically, the court stated: “I will

order the agency, particularly if we’re in the process of contacting relatives for potential

placements, to make sure to make ICWA inquiry of any known relatives. . . . [W]e’ll

need to document that we’ve spoken to the grandmother that currently has the kids, as

well as any other known relative, . . .” Thus, consistent with its continuing duty to

inquire about the children’s potential Indian ancestry (§ 224.2, subd. (a)), the court

ordered CFS to make ICWA inquiry of any known relatives, including the PGM.

Contrary to father’s claim, the court did not err by finding ICWA did not apply at the

April 28, 2022 hearing. Rather, the record shows the court complied with its ICWA duty.

The parents appealed on the same day the juvenile court ordered that further ICWA

inquiry be made in this case.5 Thus, their appeal based upon the court’s purported

finding that ICWA did not apply fails.

In sum, because father has failed to affirmatively demonstrate error as to the

termination of reunification services or ICWA compliance, we must affirm the judgment.

Accordingly, we deny the request to augment the record with postjudgment evidence as

unnecessary.

5The results of the further ICWA inquiry had not been received and could not be known at that time. 11 DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS J.

We concur:

McKINSTER Acting P. J.

MILLER J.