California Court of Appeal Sep 1, 2023 No. E081256Unpublished
Filed 9/1/23 In re L.M. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 L.M. et al., Persons Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E081256
Plaintiff and Respondent, (Super.Ct.No. RIJ1900412)
v. OPINION
A.K. et al.,
Defendants and Appellants.
APPEAL from the Superior Court of Riverside County. Dorothy McLaughlin,
Judge. Conditionally reversed and remanded with directions.
Marissa Coffey, under appointment by the Court of Appeal, for Defendant and
Appellant A.K.
Jesse McGowan, under appointment by the Court of Appeal, for Defendant and
Appellant J.M.
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Gregory P. Priamos, County Counsel, and Larisa R-McKenna, Deputy County
Counsel, for Plaintiff and Respondent.
A.K. (Mother) and J.M. (Father) are the parents of L.M., J.M.Jr., and A.M.
Mother is also the mother of M.F.Jr.1 The parents appealed from a judgment terminating
their parental rights as to the children. (Welf. & Inst. Code,2 § 366.26.) Mother and
Father filed an opening brief contending that the Riverside County Department of Public
Social Services (the Department) and the juvenile court failed to adequately comply with
the inquiry requirements of the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et
seq.; Cal. Rules of Court, rule 5.480 et seq.) On August 2, 2023, the parties filed a joint
application and stipulation for a conditional reversal of judgment and remand. After our
own careful review of the entire record, we conclude that the Department and the juvenile
court did fail to adequately comply with the inquiry requirements of ICWA, and we
reverse with directions.
FACTUAL AND PROCEDURAL HISTORY
The children L.M., J.M.Jr., and A.M. were detained on July 23, 2019. The child
M.F.Jr. was detained following his birth in July 2021. Between July 2019 and
January 2022, Mother and Father denied having any Native American ancestry, both
orally and through signed ICWA-020 Parental Notification of Indian Status (ICWA-020)
1 In September 2022, Mother gave birth to G.F., who was also immediately taken into protective custody. M.F. (Father M.F.), the father of M.F.Jr. and G.F., is not a party to this appeal, and G.F. is not a subject of this appeal.
2 All future statutory references are to the Welfare and Institutions Code.
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forms. During this time, the Department was aware of both maternal and paternal
relatives, which included the paternal grandparents, two paternal uncles, and the maternal
grandmother, and were readily available to be interviewed. On July 26, 2019,
February 21 and August 12, 2020, and January 11, April 5, and September 20, 2021, the
juvenile court found that ICWA did not apply as to L.M., J.M.Jr., and A.M.
On July 15, 2021, Mother reported that Father M.F. was a registered tribal
member of the Rincon or Pala Tribe. On this same day, Father M.F.’s mother reported
that she was a registered member of the Rincon Tribe.
The social worker confirmed with the Pala Tribe that neither Father M.F. nor
M.F.Jr. were registered tribal members or eligible for enrollment. The social worker also
received information from the Rincon Tribal Family Services that the paternal great-
great-grandfather was a registered tribal member, but Father M.F. and child M.F.Jr. were
not registered tribal members nor eligible for enrollment.
On July 22, 2021, Father M.F. filed an ICWA-020 form indicating that he may be
a member of the Rincon Indian tribe. The juvenile court found that ICWA may apply to
child M.F.Jr.
On October 14, 2022, the maternal great-grandmother C.W. filed a section 388
petition, asking the juvenile court to recognize the children as Indian children, as she and
her sister, S.L., were enrolled members of the Natchez Nation/Muscogee Indian Tribe,
and place them with family. C.W. provided her tribal roll number, as well as the roll
number of her sister, S.L.
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Mother and various maternal relatives reported that they had Native American
heritage through the Natchez Nation. Mother provided her enrollment number. The
Department was also provided with copies of citizenship cards for Mother, Father, and
the children showing that they were enrolled with the Natchez Nation.
On October 17, 2022, Mother filed an ICWA-020 form indicating that she and the
children were eligible for enrollment with the Muscogee and Cherokee Indian Tribes.
During a hearing that same day, a representative from the Natchez Nation was present by
phone, as were Mother and other maternal relatives. The juvenile court was advised that
the Natchez Nation was not a federally recognized Indian tribe under the 2022 federal
registry and that ICWA only applied to federally recognized tribes under 25 U.S.C.
section 1903, paragraph 8. The Natchez Nation, however, wished to intervene on behalf
of the children. The court reserved on the issue of whether to allow the Natchez Nation
to intervene.
On October 27, 2022, ICWA notices were sent on behalf of the children to the
Cherokee Nation of Oklahoma, the Eastern Band of Cherokee Indians, the United
Keetoowah Band of Cherokee Indians, the Morongo Band of Mission Indians, the
Natchez Nation, and the Muscogee Creek Nation. The notices were missing information
concerning Father’s relatives. The Department was aware Father at times resided with
the paternal grandparents and/or the paternal uncles. In addition, the paternal
grandmother had attended few court hearings.
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The Department received response letters from the Muscogee (Creek) Nation, the
Cherokee Nation, the Eastern Band of Cherokee Indians, the United Keetoowah Band of
Cherokee Indians, and the Morongo Band of Mission Indians, indicating that L.M.,
J.M.Jr., A.M., and M.F.Jr. were not enrolled or eligible for enrollment in the tribes.
Additionally, the Muscogee Nation reported that it was not empowered to intervene in
this matter. The Department also received a response letter from the Rincon Enrollment
Committee reporting that M.F.Jr. was not enrolled in the tribe and there was no pending
enrollment.
Mother filed two motions to transfer this case to the Natchez Nation Tribal Court
under section 224.4, arguing that ICWA applied. Father filed a brief in support of
transferring the case to the Natchez Nation Tribal Court. The children’s counsel and the
Department’s counsel both filed motions opposing the request to transfer the case,
arguing the children were not Indian children.
On January 11, 2023, the Department sent a second round of ICWA notices
pertaining to Mother and Father M.F. on behalf of the children to the relevant tribes with
copies of their enrollment cards with the Natchez Nation.
On April 10, 2023, Mother, maternal relatives, and a representative from the
Natchez Nation were present at the transfer hearing. Following argument by all parties,
the juvenile court found that ICWA did not apply and denied the request to transfer the
matter to the tribal court, as the Natchez Nation was not a federally recognized tribe in
the Federal Register. The court, however, exercised its discretion to allow the Natchez
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Nation tribe to participate in the case under section 306.6. The court also denied the