L. A. Cnty. Dep't of Children & Family Servs. v. Erica G. (In re Austin J.)

47 Cal.App.5th 870

261 Cal.Rptr.3d 297

IN RE AUSTIN J. et al., Persons Coming Under the Juvenile Court Law.

Los Angeles County Department of Children and Family Services, Plaintiff and Respondent,

v.Erica G., Defendant and Appellant.

B299564

Court of Appeal, Second District, Division 1, California.

Filed April 15, 2020

Neale Gold, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant.

Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Stephen D. Watson, Deputy County Counsel, for Plaintiff and Respondent.

ROTHSCHILD, P. J.

Erica G. (Mother) appeals from juvenile court jurisdictional and dispositional orders concerning seven of her children. Leslie J. (Leslie) is the presumed father of the four older children (ages 8 to 10 years old); Edward G. (Edward) is the presumed father of the three younger children (ages 2 to 4 years old).¹

Mother contends: (1) The juvenile court lacked jurisdiction over the subject matter of this action under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) ( Fam. Code, § 3400 et seq. ); and (2) If the court had subject matter jurisdiction, the dispositional orders must be reversed because the Los Angeles County Department of Children and Family Services (DCFS) and the juvenile court failed to comply with duties under the Indian Child Welfare Act of 1978 (ICWA) ( 25 U.S.C. § 1901 et seq. ) and related California law. We reject these arguments and affirm the juvenile court’s orders.

FACTUAL AND PROCEDURAL BACKGROUND²

In March 2016, Leslie’s children were living with him when a San Bernardino County juvenile court declared them dependents of the court and removed them from Leslie. In October 2016, the court returned the children to Mother and dismissed the dependency petition.

In November 2016, Mother allegedly left Leslie’s children with Edward’s parents in Robeson County, North Carolina. In December 2016, the Robeson County Department of Social Services (DSS) detained Leslie’s children from Mother and placed them in foster care.

On May 31, 2017, a North Carolina juvenile court declared Leslie’s children to be dependents under North Carolina law, placed them in the custody of the Robeson County DSS for placement in foster care, and approved a plan of reunification with Mother. After Mother and Edward completed classes, the children were returned to Mother.

In May 2018, Bladen County, North Carolina DSS opened a new investigation involving Mother. A social worker from Bladen County requested that the Robeson County DSS complete a home visit at a certain location and, if the family is there, "to initiate the case." (Underlining omitted.) A North Carolina social worker later told a DCFS social worker that they had "lost contact with the family due to relocating to California."

In October 2018, Mother moved to a home in Palmdale, California and enrolled in a domestic violence education group in Lancaster.

In February 2019, DCFS began an investigation concerning the family based on a referral alleging general neglect of one of Mother’s children. In early May 2019, social workers determined that the children were "at risk of suffering emotional or physical harm."

On May 7, 2019, DCFS filed a petition alleging dependency jurisdiction under Welfare and Institutions Code section 300³ over the seven children who lived with Mother. Attached to the petition are declarations by a social worker on California Judicial Council form ICWA-010(A) (Jan. 1, 2008), stating as to each child, that an "Indian child inquiry [was] made." On each form, the social worker marked a checkbox next to the statement, "[t]he child has no known Indian ancestry," and left unmarked the checkboxes for the following statements: "The child is or may be a member of or eligible for membership in a tribe"; "[t]he child’s parents, grandparents, or great-grandparents are or were members of a tribe"; [t]he residence or domicile of the child, child’s parents, or Indian custodian is in a predominantly Indian community"; [t]he child or child’s family has received services or benefits from a tribe or services that are available to Indians from tribes or the federal government"; "[t]he child may have Indian ancestry"; and "[o]ther reason to know the child may be an Indian child."

At a detention hearing held on May 7, 2019, Mother and Edward were present and Leslie was not. The court detained the seven children from Mother and ordered Leslie’s children placed in DCFS’s custody. The court released Edward’s children to him under DCFS supervision.

At the continued detention hearing held the next day, Edward did not appear, and the court detained his children from him, as well as from Mother. The court asked Mother if she had "any Native American Indian ancestry." She responded, "I was told that my mother had Cherokee," and said her "family in Little Rock, Arkansas" would have more information. The court ordered DCFS "to investigate Mother’s possible ICWA connection and to notify the appropriate Cherokee nation and the appropriate federal agencies."

On the same day, Mother filed a parental notification of Indian status (California Judicial Council form ICWA-020 (Jan. 1, 2008)) stating that the child "may have Indian ancestry"; namely, Cherokee, through her grandmother, who is deceased. The form provided checkboxes to indicate: "I am or may be a member of, or eligible for membership in, a federally recognized Indian tribe"; "[t]he child is or may be a member of, or eligible for membership in, a federally recognized Indian tribe"; and "[o]ne or more of my parents, grandparents, or other lineal ancestors is or was a member of a federally recognized [Indian] tribe." Mother left the checkboxes blank.

Two days after the detention hearing, a social worker called Mother. Mother told the social worker that "she may have [a] connection to the Cherokee or other tribes as well as having Creole heritage." She said that "she did not know if she was registered with any tribe." The possible Cherokee heritage was on her mother’s side of the family through her maternal grandmother and maternal grandfather. Mother told the social worker that her maternal aunt might have additional information.

The social worker spoke with Mother’s maternal aunt by telephone the same day. The maternal aunt reported that her mother (i.e., Mother’s maternal grandmother) "may have had Cherokee heritage," and she was not aware of other possible tribal heritage. She said that Mother’s maternal grandfather "possibly had heritage but that she did not know what tribe." She did not know if anyone in the family had attended an Indian school, lived on a reservation or been treated at an Indian clinic.

In a jurisdiction / disposition report filed on May 29, 2019, DCFS reported that ICWA "does or may apply," and that the court "was informed that there may be some Cherokee Native American/Indian heritage in [Mother’s] background.

[DCFS] was ordered to investigate said claim." The report included the social worker’s reports of her conversations with Mother and Mother’s maternal aunt regarding Indian heritage.

At a jurisdiction hearing on May 30, 2019, Leslie appeared in court for the first time. The court asked him if he had "any Native American ancestry." He said he did not. The court then stated that it "finds that ICWA does not apply to [Leslie]." On the same day, Leslie filed a parental notification of Indian status (California Judicial Council form ICWA-020 (Jan. 1, 2008)), stating: "I have no Indian ancestry as far as I know." He also left unmarked other checkboxes on the form that would, if marked, indicate that he or his children are members of, or eligible for membership in, an Indian tribe. The court did not make any further inquiries or findings concerning ICWA.

In its minute order issued after the May 30 hearing, the court stated that, as to each of Leslie’s children, the court "does not have a reason to know that this is an Indian child, as defined under ICWA, and does not order notice to any tribe or the [Bureau of Indian Affairs (BIA) ]. Parents are to keep [DCFS], their [a]ttorney and the [c]ourt aware of any new information relating to possible ICWA status." The court did not make a similar finding or order as to Edward’s children.

Edward appeared for a detention hearing on July 2, 2019. It does not appear from our record that the court asked him about Indian tribal membership or eligibility, or that the court ever made any ICWA finding as to him or his children. Nor does our record indicate that Edward filed a parental notification of Indian status.

On July 23, 2019, DCFS filed a first amended petition concerning Leslie’s children. The next day, DCFS filed a second amended petition concerning Edward’s children. California Judicial Council forms ICWA-010(A) are attached to these petitions and signed by a social worker, but are otherwise unmarked. The court sustained the petitions and declared the seven children to be dependents under section 300, subdivisions (a) and (b)(1). The court then removed the children from the parents and placed them in DCFS’s custody with directions to place them in foster care.

Mother filed a timely notice of appeal.

After appellate briefing was completed, Mother requested judicial notice of juvenile court minute orders concerning the seven children.⁴ The minute orders indicate that, at a review hearing held on January 22, 2020, the juvenile court ordered that Leslie’s children be placed with Mother and that Edward’s children be placed with him and Mother. We granted Mother’s unopposed request.

DISCUSSION

A. Subject Matter Jurisdiction Under the UCCJEA

Mother contends the juvenile court lacked subject matter jurisdiction over the case under the UCCJEA because North Carolina had continuing exclusive jurisdiction over the children and any issues regarding their custody and care. We disagree.

The UCCJEA "specifies the circumstances in which California courts have jurisdiction to make an ...