California Court of Appeal Apr 20, 2023 No. E079974Unpublished
Filed 4/20/23 In re V.H. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 V.H., a Person Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E079974
Plaintiff and Respondent, (Super.Ct.No. J290821)
v. OPINION
P.H. et al.,
Defendants and Appellants.
APPEAL from the Superior Court of San Bernardino County. Lynn M. Poncin,
Judge. Affirmed.
Richard L. Knight, under appointment by the Court of Appeal, for Defendant and
Appellant P.H.
Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and
Appellant M.P.
1
Tom Bunton, County Counsel and Kaleigh Ragon, Deputy County Counsel for
Plaintiff and Respondent.
M.P. (mother) and P.H. (father) appeal the juvenile court’s order terminating their
parental rights over their infant daughter, Violet H., who was removed at birth. They
argue there is insufficient evidence to support the court’s finding the Indian Child 1 Welfare Act (ICWA) did not apply because San Bernardino County Children and Family
California law also imposes on the courts and child welfare departments “an
affirmative and continuing duty to inquire whether a child . . . is or may be an Indian
child.” (§ 224.2, subd. (a), italics added.) This duty, commonly referred to as the initial
inquiry, “begins with the initial contact” and applies through termination of parental
rights. (Ibid.) The scope of the duty includes, “but [is] not limited to, asking the party
reporting child abuse or neglect whether [they have] any information that the child may
be an Indian child.” (Ibid., italics added.)
If as a result of the initial inquiry, the court or department concludes there is
“reason to believe” the child is or may be an Indian child—that is, they conclude there is
“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”—the department must conduct a further
inquiry. (Welf. & Inst. Code, § 224.2, subd. (e)(1).) This further inquiry includes
interviewing the parents and extended family members to gather the information
necessary for an ICWA notice, contacting the Bureau of Indian Affairs to gather the
names and contact information of the pertinent tribes, informally contacting the tribes,
and contacting any other person who may reasonably be expected to have information
regarding the child’s membership status or eligibility. (Welf. & Inst. Code, § 224.2, subd.
(e)(2)(A)-(C).)
These ICWA inquiries enable the department and the juvenile court to determine
whether notice to the tribes is necessary. (In re Austin J., supra, 47 Cal.App.5th at
pp. 883-884.) The purpose of notice is to enable the tribes “to determine whether the
12
child involved in a dependency proceeding is an Indian child and, if so, whether to
intervene in, or exercise jurisdiction over, the matter.” (T.G., supra, 58 Cal.App.5th at
p. 288.) Because ICWA defines “Indian child” in terms of tribal membership, not race or
ancestry, “the question of membership is determined by the tribes.” (T.G., at pp. 279,
294; see also Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49, 65-66, fn. 21 [the
Indian tribe is final arbiter of its membership rights].) Notice to the tribes is therefore
crucial to “effectuating ICWA’s purpose” because it enables the tribe to make the
determination and decide whether to intervene. (T.G., at pp. 288-289.)
Here, the record demonstrates the department did a thorough investigation into
Violet’s possible Native American heritage. Father’s claim of Cherokee and Blackfeet
heritage during the initial inquiry prompted the social worker to conduct a further inquiry.
The results of that inquiry, combined with father’s statements to the court at the July 22
hearing, prompted the court to order the department to provide formal notice to Cherokee
Nation. The social worker sent formal notice to Cherokee Nation and two other Cherokee
tribes containing all the information father and his relatives had provided, and all three
Cherokee tribes responded Violet was not enrolled and they would not intervene.
Though it’s undisputed the social worker asked father repeatedly for his relative’s
contact information and ultimately spoke with the only two relatives for which he
provided information (his daughter Valerie and his Aunt Grace), father argues on appeal
that there may have been additional family members with information and the social
worker should have tried to find them. He speculates he may have more than one adult
13
child and more than one aunt, and he argues the social worker should have determined
whether or not that was the case.
Simply put, that is not the social worker’s job. The department was required to
conduct a “meaningful investigation” into father’s claim of Cherokee and Blackfoot
ancestry. (In re Michael V. (2016) 3 Cal.App.5th 225, 236.) But “social workers are not
required ‘to cast about’ for investigative leads to satisfy their duties of inquiry.” (In re
Allison B. (2022) 79 Cal.App.5th 214, 220, 294, quoting In re A.M. (2020) 47
Cal.App.5th 303, 323; see also In re Q.M. (2022) 79 Cal.App.5th 1068, 1084.) The
record in this case contains no indication father had another older relative besides Grace
or another adult child besides Valerie, and tellingly, he doesn’t even claim on appeal such
relatives exist. But if even they did exist, a child welfare department cannot be expected
to uncover information a parent is hiding. (See In re N.G. (2018) 27 Cal.App.5th 474,
482 [departments must “take[] reasonable steps to ascertain whether” a child has possible
Native American ancestry].)
We also reject the claim, made by both mother and father, that the social worker’s
further inquiry was inadequate because she failed to ask Grace for additional information,
such as her Cherokee Nation enrollment number. This argument fails because the purpose
of conducting a further inquiry is to determine whether it’s necessary to send notice to a
tribe. Here, the department sent notice to Cherokee Nation that contained enough
information about father and Violet for the tribe to determine whether Violet was
enrolled or eligible for enrollment and thus whether they would intervene. The notice
14
contained father’s name, address, and place and date of birth; the full name and place and
date of birth of his mother (whom he claimed was registered); the full name of his aunt
(who claimed to be registered with the tribe); and the full name and place and date of
birth for his grandfather (whom he claimed was registered). Cherokee Nation had the full
names of three family members father claimed were registered and they nevertheless
determined Violet was not eligible for enrollment. As a result, mother and father cannot
demonstrate that asking Grace whether she had an enrollment number “would have
produced different results.” (Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779,
784.)
We conclude the court’s ICWA finding is supported by substantial evidence.
III
DISPOSITION
We affirm the order terminating parental rights.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH Acting P. J.
We concur:
FIELDS J.
MENETREZ J.
15
AI Brief
AI-generated · verify before citing
Holding. The court held that the juvenile court properly terminated parental rights because the father failed to demonstrate that the parental-benefit exception applied and the department conducted an adequate inquiry into the child's potential Native American ancestry under ICWA.
Issues
Did the juvenile court err in finding the parental-benefit exception inapplicable to the father's relationship with the child?
Did the department conduct an adequate inquiry into the child's potential Native American ancestry as required by ICWA?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Simply put, where a one-year-old baby has never lived in the parent’s care, the parent must show more than positive supervised visits to trigger the exception.”
“The department was required to conduct a “meaningful investigation” into father’s claim of Cherokee and Blackfoot ancestry.”
“But “social workers are not required ‘to cast about’ for investigative leads to satisfy their duties of inquiry.””