California Court of Appeal Aug 10, 2023 No. E080830Unpublished
Filed 8/10/23 In re O.J. CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 O.J. et al., Persons Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E080830
Plaintiff and Respondent, (Super. Ct. No. SWJ1900401)
v. OPINION
T.H.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Mona M. Nemat and
Dorothy McLaughlin, Judges. Affirmed.
Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and
Appellant.
Minh C. Tran, County Counsel, Teresa K.B. Beecham, and Catherine E. Rupp,
Deputy County Counsels, for Plaintiff and Respondent.
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I.
INTRODUCTION
T.H. (Mother) appeals from the juvenile court’s order terminating her parental 1 rights to her minor children, Ola.J. and Oly.J. Mother contends that the Riverside
County Department of Public Social Services (DPSS) failed to comply with the Indian
Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) and related state law. 2 Finding no prejudicial error, we affirm the order.
The family originally came to the attention of DPSS in May 2019 due to neglect of
the children’s sibling, then four-year-old O.J. DPSS’s investigation revealed that both
parents abused methamphetamine and marijuana and that both parents had mental health
issues. At the time, Mother was pregnant and lost the baby at 31 weeks when she
prematurely delivered due to her substance abuse. DPSS obtained a warrant and brought
O.J. into protective custody in July 2019. DPSS contacted multiple relatives and family
1 Neither the father of the children, Ot.J. (Father), nor the children’s siblings are parties to this appeal. 2 “[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.)
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friends to assess them for possible placement of O.J., including maternal aunt D.H. and
paternal aunts E.V. and L.D.
DPSS noted that ICWA does or may apply. Father reported that he was “50%
Cherokee Indian.” Father stated he was not a registered tribal member but that the
paternal grandfather may be a registered member. Mother denied having any Native
American ancestry.
On July 15, 2019, Mother filed an ICWA-020 Parental Notification of Indian
Status (ICWA-020) form, denying that she had any Indian ancestry. On the same date,
Father filed an ICWA-020 form, indicating that he was a tribal member, or that he may
be eligible for membership in the Cherokee tribe and the Blackfoot tribe.
At the July 15, 2019 detention hearing, in response to the juvenile court’s query,
Mother again indicated that she did not have any Native American ancestry, and Father
maintained that he believed he may have Indian ancestry through the Cherokee tribe or
Blackfoot Nation. The court ordered DPSS to follow-up on Father’s claim of Indian
ancestry.
On September 6, 2019, DPSS sent ICWA-030 Notice of Child Custody
Proceeding for Indian Child (ICWA-030) notice to the Cherokee Nation of Oklahoma,
the Eastern Band of Cherokee Indians, the United Keetoowah Band of Cherokee, the
Blackfeet Tribe of Montana, and the Bureau of Indian Affairs (BIA) regarding O.J. The
ICWA-030 notice included Mother and Father’s names, current and former addresses,
birthdate and place of birth, and tribe or band names; the maternal and paternal
3
grandparents’ names, current and former addresses, birthdates and places of birth, and
tribe or band names; and the maternal and paternal great-grandparents’ names, former
addresses, birthdates and places of birth, tribe or band names, and dates and places of
death. The notice noted that the tribal membership or enrollment number was
“unknown.” In the additional information section for Father, DPSS indicated that the
social worker had spoken with paternal aunt E.V. and paternal grandfather to obtain
additional information about the family’s Native American ancestry.
On September 20, 2019, DPSS again sent ICWA-030 notices to the relevant tribes
and the BIA. This notice provided substantially the same information as provided in the
original ICWA-030 notice, however this time DPSS stated that the social worker had
only spoke with paternal aunt E.V. about the family’s heritage.
On September 25, 2019, the Eastern Band of Cherokee Indians responded that O.J.
was not registered or eligible to register as a member of the tribe. The Blackfeet and
Cherokee Nation tribes both later responded to DPSS’s ICWA notices indicating O.J. was
not an Indian child or eligible for enrollment.
The juvenile court took jurisdiction on October 9, 2019, after it sustained the 3 dependency petition pursuant to Welfare and Institutions Code section 300, subdivision
(b) (failure to protect). The court found that ICWA notice was proper, declared O.J. a
dependent of the court and ordered the parents to participate in reunification services.
3 All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
4
DPSS met with Father multiple times in Spring 2020, and Father denied that he
had any new information about his Native American ancestry.
Due to the parents progress in their case plan, in April 2020, O.J. was placed with
the parents under a family maintenance plan, and dependency jurisdiction over O.J. was
terminated in October 2020. Meanwhile, Mother had given birth to sibling Or.J. in May
2020 and the child remained in the parents’ care.
B. Second Prior Dependency Involving O.J. and Or.J.
The family again came to the attention of DPSS in May 2021 after a referral was
received alleging then six-year-old O.J. and then 11-month-old Or.J. were victims of
general neglect due to domestic violence between the parents and the parents’ unresolved
mental health issues. This time, Mother reported that she may have Indian ancestry with
an unknown tribe. She denied being registered with a tribe or receiving any benefits.
Father stated that he had Cherokee and Choctaw ancestry and that both the paternal and
maternal side of his family were from Louisiana. Father informed the social worker of
his grandparents’ names.
In July 2021, DPSS obtained a protective custody warrant to remove the children
from parental custody and filed a section 300 dependency petition on behalf of both
children due to the parents’ domestic violence, unresolved mental health issues, history of
abusing controlled substances, and Father’s incarceration. Mother refused to meet in-
person with DPSS to surrender the children.
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DPSS attached an ICWA-010(A) Indian Child Inquiry Attachment (ICWA-
010(A)) form to the petition. The form indicated that the social worker had questioned
Mother and Father about their Native American ancestry, and the inquiry gave the social
worker reason to believe the children were or might be Indian children. The form
identified the Choctaw and Cherokee tribes.
The detention hearing was held on July 27, 2021. Mother and the children were
not present in court, but Father was present in custody. The juvenile court detained the
children from parental custody and issued new protective custody warrants for each child.
The court also issued a bench warrant for Mother. Prior to the detention hearing, Father
filed an ICWA-020 form indicating Choctaw and Cherokee ancestry, and the court
acknowledged Father had filed the form at the detention hearing. The court formally
detained the children from parental custody, found DPSS had conducted a sufficient
inquiry regarding the children’s Native American ancestry and that the ICWA may apply
to the proceedings.
On August 9, 2021, DPSS sent an electronic “further inquiry” letter to the relevant
tribes. DPSS also sent each tribe a hard copy of the “further inquiry” letter via certified
mail. The “further inquiry” letter contained the names and date of birth of the children’s
parents and both paternal and maternal grandparents, great grandparents, paternal aunts,
and paternal great-great grandparents.
6
On August 10, 2021, the children were located and placed with their paternal aunt
V.J. On the same date, the juvenile court recalled and quashed Mother’s arrest warrant.
On this day, Mother reported that she has Native American ancestry with the Choctaw
Nation and Cherokee Nation.
On August 10, 2021, the Choctaw Nation of Oklahoma and the Cherokee Nation
of Oklahoma each responded that they were unable to determine the children shared any
heritage with the respective tribe.
On August 20, 2021, the Mississippi Band of Choctaw Indians responded that
neither the children nor their parents were enrolled members of the tribe, nor were they
eligible for enrollment. On August 23, the Blackfeet tribe responded that the children
were not listed on the tribal rolls and did not qualify as Indian children. On August 24,
the Eastern Band of Cherokee Indians responded that Or.J. was not on the tribal registry
and was not eligible to register as a member of the tribe. On November 3, 2021, the
Cherokee Nation responded that O.J., Or.J. and their parents could not be located on the
tribal records, and the children were not “Indian children” in relation to their tribe.
At the jurisdiction/disposition hearing on August 17, 2021, the parents each filed a
waiver of rights. The juvenile court sustained the allegations in the petition, declared the
children dependents of the court and ordered the parents to participate in reunification
services. The court found that DPSS had conducted a sufficient inquiry regarding ICWA,
and determined ICWA did not apply and that the children O.J. and Or.J. were not Indian
children.
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On November 16, 2021, Mother, who was again pregnant, tested positive for
amphetamine, methamphetamine and marijuana. Mother failed to attend her drug tests
scheduled for December 7 and December 15, 2021.
C. Current Dependency Involving Ola.J. and Oly.J.
In December 2021, Mother gave birth to the children at issue in the current appeal:
twins Ola. and Oly. (also known as Oli.). The children were born prematurely at 33
weeks. Mother tested positive for marijuana and amphetamines at delivery. Mother
denied that she had used methamphetamine during her pregnancy and claimed the
hospital had given her “‘something to test positive.’” She further asserted that she had
not used methamphetamine in two years and denied that she had any mental health
concerns. She stated that she did not take her medication for bipolar and schizophrenia
because the medication likely caused her to test positive for methamphetamine. DPSS
obtained a protective custody warrant and took the twins into protective custody.
On January 4, 2022, DPSS filed a section 300 dependency petition on behalf of the
twins based on Mother’s substance abuse and mental health issues, the parents open
dependency case for the older siblings, Father’s inability to care for the children due to
his incarceration in prison for two years, and Father’s criminal history. The attached
ICWA-010(A) form indicated that DPSS had interviewed Mother on December 28, 2021,
and the inquiry gave no reason for the social worker to suspect that the children were or
may be Indian children. Father reported that he has Choctaw and Cherokee ancestry and
provided the names of the paternal grandparents.
8
Mother was present at the detention hearing, but Father was not transported. The
juvenile court formally detained the children from both parents. The court found that
DPSS had conducted an adequate inquiry into the children’s Native American ancestry,
there was reason to know the children may have Indian ancestry and that ICWA may
apply to the proceedings. The court ordered DPSS to provide notice to all identified
tribes and the BIA. Mother was ordered to complete an ICWA-020 form.
On January 12, 2022, Father stated his family ancestry contains Choctaw and
Cherokee ancestry, and that Mother was “holding on to his registration card.” On the
same date, Mother reiterated that she may have Native American heritage through the
Blackfeet and “Chacha” tribe and that she was not registered with any tribe.
On January 19, 2022, DPSS sent a “further inquiry” letter to the Cherokee Nation,
the Blackfeet Nation, and the Choctaw Nation containing the twins’ information,
however Oly. was referred to under her birth name of Oli. The letter contained the names
and date of birth of the children’s parents and both paternal and maternal grandparents,
great grandparents, paternal aunts, and paternal great-great grandparents.
On January 20, 2022, DPSS filed a tribal response letter from the Cherokee
Nation. The letter indicated Ola. and Oly. were not registered tribal citizens with the
Cherokee Nation and were not “Indian children” in relation to that tribe. On this same
date, DPSS filed a tribal response letter from the Choctaw Nation of Oklahoma indicating
that the tribal ICWA specialist was unable to determine any heritage with the tribe in
regard to the twins.
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On February 10, 2022, DPSS filed a first amended petition that corrected Oly.’s
name from “Oli[.]” to “Oly[.]”
On February 16, 2022, DPSS filed a tribal response from the United Keetoowah
Band of Cherokee Indians and the Mississippi Band of Choctaw Indians. Both tribes
stated that the twins were not Indian children in relation to the respective tribe.
On February 17, 2022, DPSS sent a “further inquiry” letter to the relevant tribes
using Oly.’s correct name. DPSS filed tribal response letters from the tribes. The
Eastern Band of Cherokee Indians, Cherokee Nation of Oklahoma, Jena Band of
Choctaw Indians, the United Keetoowah Band of Cherokee Indians, the Choctaw Nation
of Oklahoma, and the Blackfeet Tribe all responded stating that Ola. and Oly. were not
Indian children, were not registered members of the tribe, and were not eligible for
membership.
DPSS recommended that the juvenile court sustain the allegations in the first
amended petition, declare Oly. and Ola. dependents of the court, bypass reunification
services for the parents, and find ICWA did not apply to the twins. DPSS also asked the
court to find that ICWA did not apply to siblings O.J. and Or.J., that reunification
services be terminated for the parents in the older children’s case, and that a section
366.26 hearing be set.
The combined six-month review hearing in the older children’s case and the
contested jurisdiction/disposition hearing in the twins’ case was held on March 29, 2022.
Mother did not appear, and Father was not transported to the hearing. In Ola. and Oly.’s
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case, the court sustained the allegations in the first amended petition and set a date for the
contested disposition hearing. The court found DPSS had conducted a sufficient inquiry
into Ola. and Oly.’s Native American ancestry, that ICWA did not apply and that the
children were not Indian children.
As to the older children, the court also found that ICWA did not apply to O.J. and
Or.J., that DPSS had conducted a sufficient inquiry and that there was no new
information to indicate ICWA may apply. The court further found that the parents had
failed to regularly participate and make substantive progress in their case plan, terminated
the parents’ reunification services in the older children’s case and set a section 366.26
hearing.
The contested disposition hearing in Ola. and Oly.’s case was held on May 11,
2022. Mother was present, but Father was not transported for the hearing. The juvenile
court declared the twins a dependent of the court, bypassed services for the parents under
section 361.5, subdivision (b)(10), and set a section 366.26 hearing.
In June 2022, DPSS reported that “[t]he paternal aunts, L[.] [D.] and V[.] [J.], state
that there is Native ancestry through the father, O[.] J[.]. However, they do not know if
any relatives are registered for a tribe. The family lineage is through [Father’s] mother,
L[.] [R.].”
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The section 366.26 hearing in Ola.’s and Oly.’s case was held on February 6,
2023. Neither parent appeared. The juvenile court found the twins adoptable, terminated
parental rights and designated the children’s caregivers as their prospective adoptive
parents. Mother timely appealed.
III.
DISCUSSION
Mother argues that the order terminating parental rights as to the twins must be
conditionally reversed because the juvenile court failed to ensure DPSS discharged its
duty of inquiry under ICWA-related state law. Specifically, she asserts that there is no
record DPSS inquired of a maternal aunt, a maternal cousin and the paternal grandparents
about the children’s Indian status, even though these relatives were known and available
for interview, and that this lack of inquiry was prejudicial error.
DPSS acknowledges the record reveals that it does not appear the maternal aunt,
maternal cousin, or paternal grandmother were interviewed. They, however, argue the
lack of interview of extended relatives was harmless error because DPSS repeatedly
provided paternal and maternal relatives’ information to the tribes identified by both
parents and the tribes repeatedly responded the parents and children were not registered
members, nor were they eligible for membership.
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A. Governing Law
“ICWA establishes minimum federal standards that a state court must follow
before removing Indian children from their families. [Citation.] California law
implementing ICWA also imposes requirements to protect the rights of Indian children,
their families, and their tribes.” (In re Ricky R. (2022) 82 Cal.App.5th 671, 678 (Ricky
R.); §§ 224-224.6; see In re Abbigail A. (2016) 1 Cal.5th 83, 91 [“persistent
noncompliance with ICWA led the Legislature in 2006 to ‘incorporate[] ICWA’s
requirements into California statutory law’”].) “An Indian child is any unmarried person
under 18 who ‘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); see § 224.1, subd. (b).)” (Ricky R., supra, at p. 678.)
Typically, it “is not self-evident whether a child is an Indian child,” so “both
federal and state law mandate certain inquiries to be made in each case.” (In re Benjamin