In re M.S. CA4/2

Opinion

Filed 12/19/24 In re M.S. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.S., a Person Coming Under the Juvenile Court Law.

SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E084146

Plaintiff and Respondent, (Super.Ct.No. J297077)

v. OPINION

J.B.,

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Cara D. Hutson,

Judge. Affirmed.

Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and

Appellant.

Tom Bunton, County Counsel, and Landon Villavaso, Deputy County Counsel, for

Plaintiff and Respondent.

1 I. INTRODUCTION

Defendant and appellant J.B. (Father) appeals from an order terminating his

parental rights with respect to M.S. pursuant to Welfare and Institutions Code1 section

366.26. The sole claim raised in Father’s appeal is that plaintiff and respondent San

Bernardino County Children and Family Services (CFS) failed to fulfill its duty of

inquiry under the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.) as defined

in section 224.2, subdivision (b) because it did not interview “all known and available

relatives” regarding potential native American ancestry. We conclude the record does

not show error warranting reversal on this ground.

II. BACKGROUND

Father and S.B. (Mother)2 are the parents of M.S.3 In May 2023, CFS took M.S.

into protective custody pursuant to a warrant. Shortly thereafter, the department filed a

petition pursuant to section 300 on behalf of M.S., alleging that Mother and Father were

unable to supervise, protect, provide, or care for M.S. as the result of domestic violence

between Mother and Father; Mother’s untreated mental health conditions; Mother’s and

Father’s inability to provide safe and adequate provisions to care for M.S.; and Mother’s

unresolved dependency case involving M.S.’s half-siblings.

1 Undesignated statutory references are to the Welfare and Institutions Code.

2 Mother is not a party to this appeal.

3 M.S. was initially incorrectly identified as M.B. in the record, and the trial court subsequently ordered that the record be corrected to accurately reflect the name on her birth certificate.

2 In May 2023, CFS filed a detention report. CFS reported that Mother denied

having any Native American ancestry when questioned by a social worker. She

reaffirmed this denial in a CFS Family Find and ICWA Inquiry form and also denied

knowledge of facts that might suggest a reason to believe she had any Native American

ancestry in a written ICWA-020 form. When initially asked by a social worker, Father

asserted he had Native American ancestry associated with “the Cherokee tribe” but

confirmed he did not have any tribal membership. However, a few days later, Father

denied having any Native American ancestry in a CFS Family Find and ICWA Inquiry

form and also denied knowledge of facts that might suggest a reason to believe M.S. had

any Native American ancestry in a written ICWA-020 form.4

In July 2023, CFS filed a jurisdictional and dispositional report. Father reported to

a social worker that his mother (paternal grandmother) believed there was some

“Cherokee” ancestry “in their family.” Father provided the social worker with paternal

grandmother’s maiden name and the family’s general origins in the midwestern United

States. At an initial jurisdictional and dispositional hearing, a maternal aunt appeared

with Mother. As a result, the juvenile court inquired directly of maternal aunt whether

she had reason to know if M.S. had any Native American ancestry. Maternal aunt

initially expressed the belief that her family might have Native American ancestry.

However, upon further questioning, maternal aunt stated she (1) had no information

4 CFS also inquired of an alleged father who was incarcerated at the time. The alleged father denied any Native American ancestry in a CFS Family Find and ICWA Inquiry form as well as an ICWA-020 form. It was subsequently determined that the alleged father was not biologically related to M.S.

3 regarding any tribal affiliation, (2) she had no knowledge of how she might have Native

American ancestry, (3) she did not know what family members may have information

regarding Native American ancestry, and (4) she could not recall anyone in the family

ever telling her she had Native American ancestry. The juvenile court sustained the

jurisdictional allegations of the petition, formally removed M.S. from parental custody;

denied reunification services to both parents pursuant to section 361.5, subdivision (b),

and set the matter for a hearing pursuant to section 366.26.

In January 2024, CFS filed an “additional information” report outlining its efforts

to further inquire regarding M.S.’s potential status as an Indian child. CFS interviewed

paternal grandmother, who stated that her maternal grandparents had claimed to have

Native American ancestry. Paternal grandmother provided the social worker with the

names of these paternal great-great grandparents, as well as the names and birthdates of

paternal great grandparents, all of whom were deceased. Based upon this information,

CFS sent letters to the Bureau of Indian Affairs and the Cherokee Nation to inquire

further regarding M.S.’s potential tribal affiliation but had yet to receive a response as of

the date of the report.

The additional information report also detailed a follow up interview with Mother

in which Mother stated she had once been told by her paternal grandmother that she had

“Indian and German ancestry.” However, Mother reported that this maternal great-great

grandmother never specified any tribal affiliation and was now deceased. Mother

provided the contact information for her paternal aunt (maternal great aunt) as a person

who might have additional information. The social worker documented an attempt to

4 contact the paternal great aunt by telephone but stated she encountered only a message

stating that the “call party is unavailable.”

In March 2024, CFS filed a section 366.26 selection and implementation report.

CFS reported that it had confirmed that its written correspondence to the Bureau of

Indian Affairs, as well as the Cherokee Nation, had been received but noted that CFS had

still not received any response. CFS also reported that it sent additional correspondence

to the Bureau of Indian Affairs, Eastern Band of Cherokee Indians, the Cherokee Nation,

and the United Keetoowah Band of Cherokee Indians to inquire about M.S.’s potential

tribal affiliation. This updated correspondence specifically identified M.S.’s parents,

maternal grandmother, maternal great-great grandparents, paternal grandparents, and

paternal great-great grandparents to assist with any inquiry. At the section 366.26

hearing, the juvenile court terminated Mother’s and Father’s parental rights and selected

a permanent plan of adoption. Father appeals from the order terminating his parental

rights.

III. DISCUSSION

In this appeal, the only claim of error is that the juvenile court and the department

failed to fulfill their duty of inquiry under ICWA and section 224.2 by failing to

interview identified relatives who were mentioned at various times in CFS reports. For

the reasons set forth below, we conclude that Father has failed to show error and affirm

the order terminating parental rights.

5 A. General Legal Principles and Standard of Review

“Congress enacted ICWA in 1978 to address concerns regarding the separation of

Indian children from their tribes through adoption or foster care placement, usually in

non-Indian homes. [Citation.] ICWA established minimum standards for state courts to

follow before removing Indian children from their families and placing them in foster

care or adoptive homes.” (In re D.S. (2020) 46 Cal.App.5th 1041, 1048.)

Section 224.2 of 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.” (In re D.S., supra, 46 Cal.App.5th at p. 1052;

§ 224.2)

Following the inquiry stages, the juvenile court may make a finding that ICWA

does not apply because the department’s inquiry and due diligence was “ ‘proper and

adequate’ but no ‘reason to know’ whether the child is an Indian child was discovered.”

(In re D.S., supra, 46 Cal.App.5th at p. 1050.) “The finding implies that notice to a tribe

was not required because social workers and the court did not know or have a reason to

know the [dependent] children were Indian children and that social workers had fulfilled

6 their duty of inquiry.” (In re Austin J. (2020) 47 Cal.App.5th 870, 885, overruled in part

on other grounds by In re Dezi C. (2024) 16 Cal.5th 1112, 1152.) “ ‘ “On a well-

developed record, the [juvenile] court has relatively broad discretion to determine

whether the agency’s inquiry was proper, adequate, and duly diligent on the specific facts

of the case.” ’ ” (In re Dezi C., at p. 1141.)

“[W]e review the juvenile court’s ICWA findings under the substantial evidence

test, which requires us to determine if reasonable, credible evidence of solid value

supports the court’s order.” (In re A.M. (2020) 47 Cal.App.5th 303, 314, overruled on

other grounds in In re Dezi C., supra, 16 Cal.5th at p. 1152 fn. 18; In re Austin J., supra,

47 Cal.App.5th at p.885 [implicit finding that social workers fulfilled their duty of

inquiry and is reviewed for substantial evidence].)

B. Father Has Failed to Show Error Warranting Reversal

Here, Father’s entire claim of error rests on the argument that the juvenile court’s

implied finding that social workers fulfilled their duty of inquiry under ICWA is not

supported by substantial evidence. Specifically, Father argues that CFS failed to fulfill

its duty of inquiry because the record discloses “numerous other relatives known to the

social worker and referenced in reports” that were never specifically interviewed

regarding M.S.’s potential Native American ancestry. We disagree that the failure to

interview some family members is sufficient to show error in the context of this case.

Recently, our Supreme Court endorsed the view that “[i]f, upon review, a juvenile

court’s findings that an inquiry was adequate and proper and ICWA does not apply are

found to be supported by sufficient evidence and record documentation as required by

7 California law . . . , there is no error and conditional reversal would not be warranted

even if the agency did not inquiry of everyone who has an interest in the child.” (In re

Dezi C., supra, 16 Cal.5th at p. 1141.) In doing so, our Supreme Court affirmed the view

taken by numerous published decisions by the Court of Appeal that “complying with the

literal language of [section 224.2, subdivision (b)]—that is, making an initial and further

ICWA inquiry of every member of a child’s extended family, . . . plus every other person

who has an interest in the child—is absurd at best and impossible at worst.” (In re

Ezequiel G. (2022) 81 Cal.App.5th 984, 1006, overruled on other grounds by Dezi, C. at

p. 1157; In re K.H. (2022) 84 Cal.App.5th 566, 603-604 [agreeing that a literal

interpretation of section 224.2, subd. (b) “could arguably lend itself to an absurd

interpretation”].)

Instead, the duty imposed by section 224.2 should be “ ‘slight and swift.’ ” (In re

Dezi C., supra, 16 Cal.5th at p. 1143 citing In re S.S. (2023) 90 Cal.App.5th 694, 698.)

The juvenile court’s finding that social workers fulfilled their duty of inquiry under

section 224.2, turns on (1) whether social workers conducted an inquiry of extended

family members whom they were already investigating as part of their usual course of

work (In re S.S., at pp. 704-705; In re H.B. (2023) 92 Cal.App.5th 711, 720); and

(2) whether the record was sufficient to support a reasonable conclusion that the inquiry

“ ‘has reliably answered the question at the heart of the ICWA inquiry: Whether a child

involved in a proceeding “is or may be an Indian child” ’ ” (In re H.B., at p. 720).

In our view, the record in this case was clearly more than cursory in nature. The

record indicates that an initial inquiry was conducted of each family member who

8 appeared during court proceedings—including Mother, Father and a maternal aunt. The

record also shows that CFS made attempts to contact the additional family members who

were identified as potentially having relevant information regarding M.S.’s status as an

Indian child—including paternal grandmother and maternal great aunt. Based upon the

information provided by paternal grandmother, CFS then proceeded to inquire directly of

the Bureau of Indian Affairs and at least three different tribal entities. None of these

efforts disclosed any information to suggest a reason to know that M.S. was an Indian

child.

Father argues that the inquiry in this case was inadequate because there were

several family members briefly mentioned in various reports that were not interviewed.

We are unpersuaded that a reasonable inquiry in this case would have required contacting

these family members. With respect to maternal family members, a psychological

assessment attached to one of the reports submitted by CFS briefly mentioned that

Mother has one sister and one brother. However, Mother’s sister was interviewed

directly by the juvenile court at the jurisdictional and dispositional hearing,5 and the

record does not indicate that Mother ever provided the name or contact information for

her brother. (In re Q.M. (2022) 79 Cal.App.5th 1068, 1082 [“[W]e cannot ask the agency

to intuit the names of unidentified family members or to interview individuals for whom

5 Father suggests on appeal that there is “one additional maternal aunt,” but this contention appears to be unsupported by the record. While several reports refer to Mother’s sister generally, nothing in the record suggests that these references are to a different individual than the maternal aunt who appeared in court and was questioned by the juvenile court.

9 no contact information has been provided.”].) The only other maternal relative identified

in the record was a maternal grand aunt, whom social workers attempted to contact, but

did not receive a response. (2CT 8, In K.M. (2009) 172 Cal.App.4th 115, 119 [no further

duty to inquire if a family member refuses to talk].)

With respect to paternal family members, Father argues that CFS failed to

interview Father’s sisters and Father’s cousin. However, the record does not suggest that

any of these individuals would have been persons whom social workers contacted as part

of their usual course of work. More importantly, CFS successfully inquired of paternal

grandmother—the actual family member through whom Father claimed M.S. might have

native American lineage. Having successfully inquired of paternal grandmother, there

was no logical reason why a reasonable inquiry would have required conducting

additional inquiries with Father’s siblings or cousin.6

When the record shows that social workers conducted more than a mere cursory

inquiry and such record is sufficient to support a reasonable conclusion that the inquiry

has reliably answered the question of whether a dependent child is an Indian child,

substantial evidence supports the trial court’s finding that ICWA does not apply. The

fact that CFS did not interview every single family member identified in the record does

6 In the normal course, the direct family member with alleged Native American ancestry would be presumed to have more accurate and complete information than family members who are not within the dependent child’s direct lineage and are generationally removed from the purported tribal affiliation. Absent any indication to the contrary, it is not unreasonable for social workers to pursue the best and most direct source of relevant information first and then, based upon the response, determine if further inquiry is needed from less reliable sources of information.

10 not, in itself, cast doubt on the conclusion reached by the juvenile court. Because Father

has failed to show error on this point, we need not address his additional arguments

regarding prejudice.

IV. DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS J.

We concur:

McKINSTER Acting P. J.

MILLER J.