Filed 5/19/22 In re G.R. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Stanislaus County. Annette Rees, Judge.

Brian Bitker, under appointment by the Court of Appeal, for Defendant and Appellant.

Thomas E. Boze, County Counsel, and Lindy GiacopuzziRotz, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

FACTS[1]

On May 12, 2020, the Stanislaus County Community Services Agency filed dependency petitions pertaining to L.R., Z.R., and G.R., who were 16, 12 and 10 years of age at the time, respectively. The petition alleged the children were at substantial risk of serious physical harm or illness due to appellant Patricia R.’s (mother) failure to supervise or protect the child adequately, and due to her inability to provide regular care due to the parent’s mental illness, developmental disability, or substance abuse. (Welf. & Inst. Code, § 300, subd. (b)(1).)

On May 12, 2020, mother’s social worker filed “Parental Notification of Indian Status” forms on behalf of mother, indicating she is or may be eligible in the “Cherokee” and/or “Nahuatl” tribes.

At the detention hearing on May 13, 2020, the court found ICWA “may” apply based on mother’s notifications. The court “trailed” the remainder of the detention hearing to the next day.

On May 14, 2020, the children’s presumed father James R. (father) filed Parental Notification of Indian Status forms. He checked the box next to, “I am or may be a member of, or eligible for membership in, a federally recognized Indian tribe.” Under name of Indian tribe, father wrote: “Unknown.”

At the trailed detention hearing on May 14, 2020, the court noted father’s forms indicated “that he may have Native American ancestry of an unknown tribe.” Father’s counsel asked, “Did you indicate that father said he had Native American ancestry?” The court noted that father’s form checked the box next to “I am or may be a member of” a federally recognized Indian Tribe. The court suggested, “[p]erhaps we should voir dire dad in this regard and see if this form is appropriate.” Father’s counsel responded, “Please, Your Honor. That was not the substance of my discussion with him.” The following exchange occurred:

“THE COURT: Okay. Dad, do you believe you have any Native American ancestry?

“THE FATHER: I don’t know nothing that I could prove. I have belief but as far as any type of proof other than hearsay from other relatives is not.”

“THE COURT: All right.

“THE FATHER: I’m not a member of any type of thing. I didn’t register. I haven’t been registered with any of that.

“I asked the lady that brought me the form and just said that’s the form. Since I didn’t know for sure whether I had Indian heritage or not, that I needed to sign the form so that way it could be looked into.”

“THE COURT: I understand. So in your family history, you, perhaps, have heard stories that you may have some Native American ancestry?

“THE FATHER: Correct.

“THE COURT: Okay. And when you heard those stories, have you heard about maybe any one particular tribe?

“THE FATHER: No.

“THE COURT: And maybe any one particular region of the country?

“THE FATHER: No.

“THE COURT: Okay. All right. So, counsel, it would seem to me that the form is appropriately filled out. Any comments on that, Ms. Cobb [County Counsel]?

“MS. COBB: No, Your Honor. I would ask if [father] knows of any family members that he could ask as to whether or not there may be a specific tribe that he is affiliated with or the family is affiliated with.

“THE COURT: That would be appropriate.

“So what I would do, [father], is tell you this would be a good time for you to check in with those family sources that you have heard from in the past to see if you have any more information.

“The whole purpose here is that Indian children and Indian tribes have a special relationship; it’s a legally-recognized relationship. And so tribes have the right to intervene in a case to make sure that the rights of both the Indian and the tribe are being followed. And so, of course, we would want that to happen at a sooner point rather than a later point.

“So this would be a time to have those conversations with family members. Okay.

“THE FATHER: Okay.

“THE COURT: All right. The answer was yes.

Anything more in that regard, Ms. Cobb?

“MS. COBB: Thank you, Your Honor. I would just say that at this point as to [father], there’s no reason to believe that the Indian Child Welfare Act applies. But if [father] does inquire as to family members and receives any further information, if he could let the social worker and his attorney know as soon as possible.”

At the conclusion of the hearing, the court found as follows:

“The Court is going to continue with its previous finding that the Indian Child Welfare Act may apply. That is based on mother’s declaration. The Court would indicate that it may very well apply as to it relates to dad. But, of course, the agency has no information to proceed with because family history, family lore does not put the agency on notice. But, of course, dad knows that he can start asking some questions and he said he’s going to do so.”

In June 2020, the Agency provided notice to Cherokee tribes, who each later responded that the children were not eligible for enrollment.

At a disposition hearing on September 16, 2020, the court granted reunification services to both parents. On August 30, 2021, the court terminated mother’s reunification services, but continued father’s reunification services as to Z.R. and G.R.

On December 11, 2020, the court found that ICWA did not apply.

On July 27, 2021, mother filed a JV-180 form asking the court to return the children to her custody and terminate the dependency case. On August 31, 2021, the court denied mother’s request. The court’s August 31, 2021, order repeated its finding that ICWA does not apply.

Mother appeals.

DISCUSSION

Mother contends the juvenile court and the Agency failed to satisfy their “affirmative and continuing duty to inquire whether” the children were “Indian children” under ICWA.

Law

“The court, [and the] county welfare department, … have an affirmative and continuing duty to inquire whether a child for whom a petition under Section 300 … has been filed, is or may be an Indian child. The duty to inquire begins with the initial contact, including, but not limited to, asking the party reporting child abuse or neglect whether the party has any information that the child may be an Indian child.” (§ 224.2, subd. (a).) Once a child is placed in the temporary custody of the county welfare department pursuant to section 306, “the county welfare department or county probation department has a duty to inquire whether that child is an Indian child. Inquiry includes, but is not limited to, asking the child, parents, legal guardian, Indian custodian, extended family members, others who have an interest in the child, and the party reporting child abuse or neglect, whether the child is, or may be, an Indian child .…” (§ 224.2, subd. (b).)

In some cases, the court or social worker must also conduct what is called “further inquiry.” This duty is triggered when the court or social worker have “reason to believe” an Indian child is involved in the proceedings. (§ 224.2, subd. (e).) “There is reason to believe a child involved in a proceeding is an Indian child whenever the court [or] social worker, … has 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. Information suggesting membership or eligibility for membership includes, but is not limited to, information that indicates, but does not establish, the existence of one or more of the grounds for reason to know enumerated in paragraphs (1) to (6), inclusive, of subdivision (d).”[2] (Id. at subd. (e)(1).)

Further inquiry includes, but is not limited to, interviewing the parents and extended family members to obtain the name, birth date and birthplace of the Indian child, the name of the Indian tribe in which the child is a member or may be eligible for membership, all names known of the Indian child’s biological parents, grandparents, and great-grandparents, including maiden, married, and former names or aliases, as well as current and former addresses, birth dates, places of birth and death, tribal enrollment information of direct lineal ancestors of the child and any other identifying information if known. (§§ 224.2, subd. (e)(2)(A) & 224.3, subd. (a)(5)(A)–(C).)

A juvenile court’s finding that the ICWA is inapplicable is reviewed under the substantial evidence standard. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430.)

Analysis

The parties disagree whether the father’s statements at the detention hearing and his ICWA-020 parental notification forms triggered the duty of further inquiry under section 224.2, subdivision (e).

When a parent indicates on the ICWA-020 form that he or she may have Indian ancestry, the duty of further inquiry is triggered even when no specific tribe is identified. (See In re D.F., supra, 55 Cal.App.5th at p. 569.) Here, Father indicated on the ICWA-020 form that he may be a member or eligible for membership in a federally recognized tribe but identified no specific tribe. He said his belief was based on information he heard from relatives. Certainly, this would not constitute reason to know the children were Indian children under ICWA. But it is sufficient to provide reason to believe, so as to trigger the duty of further inquiry. (See ibid.)

The Department disagrees, citing In re Austin J. (2020) 47 Cal.App.5th 870, 888 (Austin J.) in arguing there was no duty of further inquiry here. Austin J. held that the fact that a parent believes he or she “may” have Indian ancestry based on general statements from relatives does not supply reason to believe the children are Indian children under ICWA. (In re Austin J., at p. 888, but see In re Y.W. (2021) 70 Cal.App.5th 542, In re T.G. (2020) 58 Cal.App.5th 275.) At most, such information “suggest[s] a mere possibility of Indian ancestry.” (Austin J., at p. 888.) “Indian ancestry, heritage, or blood quantum, however, is not the test; being an Indian child requires that the child be either a member of a tribe or a biological child of a member. [Citations.] Being a member of a tribe depends ‘on the child’s political affiliation with a federally recognized Indian Tribe,’ not the child’s ancestry. [Citations.] Consequently, ‘many racially Indian children’ do not fall within ICWA’s definition of an Indian child, while others may be Indian children even though they are ‘without Indian blood.’ [Citation.] Indian ancestry, without more, does not provide a reason to believe that a child is a member of a tribe or is the biological child of a member.” (Id. at pp. 888–889.)

Austin J. is entirely correct to point out that tribal membership – either the child’s or a biological parent’s – is an absolute prerequisite in the definition of an Indian child. (25 U.S.C. § 1903(4); see § 224.1, subd. (a).) A child is an “Indian child” only if (1) he or she is a member of a tribe or (2) he or she is eligible for membership in a tribe and a biological parent is a member of a tribe. (25 U.S.C. § 1903(4).)

However, further inquiry is required when the Agency has “reason to believe” an Indian child is involved even if there is insufficient “information to determine that there is reason to know that the child is an Indian child.” (§ 224.2, subd. (e), italics added.) While it is true that ICWA’s definition centers on a family’s political affiliation with a tribe and that Native American ancestry is not synonymous with tribal membership, it is also true that “[a] minimum percentage of Indian ancestry is often used to define the ethnic limit of the tribe, determining those eligible to be tribe members….” (The Indian Bill of Rights and the Constitutional Status of Tribal Governments (1969) 82 Harv. L. Rev. 1343, 1361, italics added.) Because a child’s Native American ancestry significantly increases the apparent probability that he or she may be a member, or eligible for membership in a tribe, it can supply reason to believe an Indian child may be involved in the proceedings.

It is no answer to observe that “many racially Indian children” do not fall within ICWA’s definition of an Indian child, while others may be Indian children even though they are “without Indian blood.” (Austin J., supra, 47 Cal.App.5th at pp. 888–889.) Because while it is true that ancestry does not decisively establish membership or ICWA applicability, it does justify further inquiry to make that ultimate determination. Of course, it remains entirely possible that further inquiry will show that, despite the child’s Native American ancestry, neither the child nor their biological parent is a member of a tribe. And, as a result, the child would not be an Indian child under ICWA. But that is a determination that must be made after further inquiry has been conducted. While it is unlikely that further inquiry will uncover “reason to know” the children in this case are “Indian children” under ICWA, we are unable to base our judgment on such a prediction.

Moreover, Austin J. is distinguishable. In Austin J., the parent “filed a parental notification of Indian status … stating that the child ‘may have Indian ancestry,’ ” but the parent left blank the box for “ ‘I am or may be a member of, or eligible for membership in, a federally recognized Indian tribe.’ ” (Austin J., supra, 47 Cal.App.5th at p. 878.) The rationale of Austin J. is that membership is determinative, and ancestry is not the same as membership, so an indication of mere ancestry is not enough. In the present case, however, father’s ICWA-020 form indicated “I am or may be a member of, or eligible for membership in, a federally recognized Indian tribe.” (Italics added.) Consequently, Austin J. is distinguishable from the present case on its own terms.

The Agency cites no substantial evidence establishing that further inquiry was performed here. (See In re K.R. (2018) 20 Cal.App.5th 701, 708–709.) Accordingly, we will conditionally reverse the finding that ICWA does not apply.

DISPOSITION

The finding that ICWA does not apply is conditionally reversed. The matter is remanded for the court and/or Agency conduct further inquiry under section 224.2. If after further inquiry the court and Agency do not have “reason to know” an Indian child is involved in these proceedings, the finding that ICWA does not apply may be reinstated. However, if after further inquiry, the court or Agency has “reason to know” an Indian child is involved in these proceedings, the court shall proceed accordingly under section 224.2.

* Before Poochigian, Acting P. J., Detjen, J. and Snauffer, J.

[1] Because the sole issue on appeal concerns Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.; § 224 et seq.) (ICWA) compliance, we will restrict our statement of facts to those bearing on that issue. (In re D.F. (2020) 55 Cal.App.5th 558, 562; Guardianship of D.W. (2013) 221 Cal.App.4th 242, 245; see In re I.B. (2015) 239 Cal.App.4th 367, 370; In re J.M. (2012) 206 Cal.App.4th 375, 378; In re Jose C. (2007) 155 Cal.App.4th 844, 846.)

[2] Paragraphs (1) to (6) of subdivision (d) provide:

(1) A person having an interest in the child, including the child, an officer of the court, a tribe, an Indian organization, a public or private agency, or a member of the child’s extended family informs the court that the child is an Indian child.

(2) The residence or domicile of the child, the child’s parents, or Indian custodian is on a reservation or in an Alaska Native village.

(3) Any participant in the proceeding, officer of the court, Indian tribe, Indian organization, or agency informs the court that it has discovered information indicating that the child is an Indian child.

(4) The child who is the subject of the proceeding gives the court reason to know that the child is an Indian child.

(5) The court is informed that the child is or has been a ward of a tribal court.

(6) The court is informed that either parent or the child possess an identification card indicating membership or citizenship in an Indian tribe.” (§ 224.2, subd. (d)(1)–(6).)