Filed 8/18/22 In re Z.A. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from an order of the Superior Court of Los Angeles County, Linda Sun, Judge. Affirmed.

Christopher R. Booth, under appointment by the Court of Appeal, for Defendant and Appellant.

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, William D. Thetford, Deputy County Counsel, for Plaintiff and Respondent.

INTRODUCTION

M.A. (father) appeals from the juvenile court’s jurisdictional and dispositional findings on Welfare and Institutions Code[1] sections 342 and 387 petitions. Father solely contends the juvenile court erred by finding the Los Angeles County Department of Children and Family Services (the Department) adequately investigated the children’s possible Indian ancestry, as required by the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) and related state statutes. Father initially indicated he might have Apache ancestry. As a result, the juvenile court ordered the Department to conduct further inquiry and send notices to the Apache tribes. The Apache tribes that did respond indicated Z.A. was not eligible for membership. One did not respond after the Department made reasonable efforts to obtain a response. Nothing in the record suggests any reason to believe Z.A. might have Native American heritage other than Apache. And Father later indicated he had no known Indian ancestry. On these facts we conclude any error was harmless and affirm.

FACTUAL AND PROCEDURAL BACKGROUND[2]

B.D. (mother)[3] and father have one child together, Z.A. (born in October 2018). Mother has two other children. This appeal, however, concerns only Z.A.

In February 2019, the Department filed a dependency petition alleging Z.A. and his siblings came under the jurisdiction of the juvenile court pursuant to section 300, subdivisions (a) and (b). Attached to the original petition was the ICWA-010 form, wherein the Department noted Z.A. had no known Indian ancestry. The form, however, did not indicate who the Department interviewed. A first amended petition was filed in March 2019. Later that month, the juvenile court sustained the petition as amended by interlineation. Like the original petition, attached to the amended petition was the ICWA-010 form. Again, the Department noted Z.A. had no known Indian ancestry, but the form did not indicate who the Department interviewed.

At the detention hearing on the original petition, father filed a Parental Notification of Indian Status Form (ICWA-020), indicating he may have Indian ancestry. More specifically, he claimed he may have possible Apache ancestry. Upon review of the form, the juvenile court ordered the Department to further inquire with father and paternal relatives about Z.A.’s possible Indian ancestry. Furthermore, the juvenile court ordered “at minimum” that the Department serve notices to the Bureau of Indian Affairs (BIA) and all Apache Tribes.

In March 2019, the Department social worker interviewed father regarding his Indian ancestry. Father stated he would provide the Department with further information. Later that month, the Department mailed ICWA-030 (ICWA notices) to the Apache Tribe of Oklahoma, the Fort Sill Apache Tribe of Oklahoma, the Jicarilla Apache Nation, the Mescalero Apache Tribe, the San Carlos Apache Tribe, the White Mountain Apache Tribal Council, the Tonto Apache Tribal Council, the Yavapai Apache Community Council, the BIA, and the Secretary of the Interior. Because mother claimed no Indian ancestry, the notices contained no information regarding her relatives. With respect to father, the notices included the following information: (1) father’s full name and alias, his current address, his date and place of birth, and his possible tribal affiliation; (2) the names, addresses, dates and places of birth, and possible tribal affiliations of paternal grandparents; and (3) the names, addresses, dates and places of birth, dates and places of death, and possible tribal affiliations of paternal great-grandparents. The Department provided a copy of the ICWA notices to the juvenile court.

Prior to the June 2019 dispositional hearing, the Department informed the juvenile court that the Tonto Apache Tribe, the Fort Sill-Chiricahua-Warm Spring Apache Tribe, the San Carlos Apache Tribe, the BIA, and the Mescalero Child Welfare and Family Services had responded to the ICWA notices. Each tribe determined Z.A. was not eligible for tribe membership. The Department provided a copy of the responses to the juvenile court. At the dispositional hearing, the juvenile court found that ICWA notice was incomplete as some of the tribes had yet to respond.

In July 2019, the Department informed the juvenile court it received responses from the White Mountain Apache Tribe and the Apache Tribe of Oklahoma. Both tribes determined Z.A. was not eligible for tribe membership based on the information received. At the July dispositional hearing, the juvenile court ordered the Department to send a corrected notice to the Mescalero Apache tribe because the original notice failed to include paternal grandfather’s full name.

In July 2019, the Department informed the juvenile court it was unsuccessful in its multiple attempts to obtain another response from the Mescalero Apache Tribe. In August 2019, the juvenile court found the Department made reasonable but unfruitful efforts to obtain a response from the Mescalero Apache tribe. Consequently, on August 8, 2019, the juvenile court found ICWA inapplicable.

In December 2020, the Department filed a subsequent dependency petition pursuant to section 342 and a supplemental petition pursuant to section 387. The juvenile court sustained both the subsequent and supplemental petitions. Father timely filed a notice of appeal.

In January 2021, father stated he had no known Indian ancestry. The record does not reveal what prompted father to reach this conclusion.

DISCUSSION

Father contends the Department failed to conduct an adequate investigation into his possible Indian ancestry. Specifically, he argues there is no indication the Department ever contacted his father, aunts, uncles, and other statutorily required extended family members. He urges that because of the alleged inquiry insufficiencies, the notices sent to the Apache Tribes, the BIA, and the Secretary of State were inadequate. The Department contends it conducted an adequate ICWA inquiry as reflected by the detailed information contained in the ICWA notices. Moreover, the Department contends there was no probability of obtaining additional meaningful information from paternal relatives. In the alternative, the Department contends any error was harmless because the information father provided was sufficient for a reliable determination.

1. Legal Principles and Standard of Review

1. 1. ICWA

ICWA^[4] reflects “a congressional determination to protect Indian children and to promote the stability and security of Indian tribes and families by establishing minimum federal standards that a state court . . . must follow before removing an Indian child from his or her family.” (In re Austin J. (2020) 47 Cal.App.5th 870, 881 (Austin J.).) Both ICWA and the Welfare and Institutions Code define an “Indian child” as “any unmarried person who is under age eighteen and 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); § 224.1, subds. (a) and (b) [incorporating federal definitions].)

The juvenile court and the Department have “an affirmative and continuing duty to inquire whether a child for whom a petition under Section 300 . . . may be or has been filed, is or may be an Indian child.” (§ 224.2, subd. (a); see In re Isaiah W. (2016) 1 Cal.5th 1, 9, 11–12.) This continuing duty can be divided into three phases: the initial duty to inquire, the duty of further inquiry, and the duty to provide formal ICWA notice.

The duty to inquire whether a child is an Indian child begins with “the initial contact,” i.e., when the referring party reports child abuse or neglect that triggers the Department investigation. (§ 224.2, subd. (a).) The Department’s initial duty to inquire includes asking the child, parents, legal guardian, extended family members, and others who have an interest in the child whether the child is, or may be, an Indian child. (Id., subd. (b).) Similarly, the juvenile court must inquire at each parent’s first appearance whether he or she “knows or has reason to know that the child is an Indian child.” (Id., subd. (c).) The juvenile court must also require each parent to complete Judicial Council form ICWA-020, Parental Notification of Indian Status. (Cal. Rules of Court, rule 5.481(a)(2)(C).) The parties are instructed to inform the court “if they subsequently receive information that provides reason to know the child is an Indian child.” (25 C.F.R. § 23.107(a); § 224.2, subd. (c).)

A duty of further inquiry is imposed when the Department or the juvenile court has “reason to believe that an Indian child is involved” in the proceedings. (§ 224.2, subd. (e); Austin J., supra, 47 Cal.App.5th at pp. 883–884, and In re D.S. (2020) 46 Cal.App.5th 1041, 1048–1049 (D.S.).) The Legislature did not define what constitutes “reason to believe.” (See ibid.)

Further inquiry concerning the possible Indian status of the child includes: (1) interviewing the parents and extended family members to gather required information;^[5] (2) contacting the Bureau of Indian Affairs and State Department of Social Services for assistance in identifying the tribes in which the child may be a member or may be eligible for membership; and (3) contacting the tribes and any other person that may reasonably be expected to have information regarding the child’s membership or eligibility. (§§ 224.2, subds. (e)(1)–(2) & 224.3, subds. (a)(5)(A)–(C); Cal. Rules of Court, rule 5.481(a)(4) [sets forth same requirements].) Contact with a tribe must include, at a minimum, “telephone, facsimile, or electronic mail contact to each tribe’s designated agent” and include information “necessary for the tribe to make a membership or eligibility determination.” (§ 224.2, subd. (e)(1)(C)). The sharing of information with tribes at the further inquiry stage is distinct from formal ICWA notice, which requires a “reason to know,” rather than a “reason to believe,” that the child is an Indian child. (D.S., supra, 46 Cal.App.5th at p. 1052.)

If the agency’s inquiry creates a “reason to know” that an Indian child is involved, notice of the proceedings must be provided to the parent, legal guardian, or Indian custodian and the child’s tribe. (§ 224.2, subd. (f).) There is “reason to know” a child is an Indian child if any one of six statutory criteria is met—e.g., if the court is advised that the child “is an Indian child,” the child’s or parent’s residence is on a reservation, the child is or has been a ward of a tribal court, or either parent or the child possess an identification card indicating membership or citizenship in an Indian tribe. (§ 224.2, subd. (d).) Thereafter, the court shall confirm that the agency used due diligence to identify and work with the identified tribes to verify whether the child is in fact a member or whether a biological parent is a member and the child is eligible for membership. (§ 224.2, subd. (g).) A determination by an Indian tribe that a child is or is not a member of, or eligible for membership in, that tribe “shall be conclusive.” (§ 224.2, subd. (h).)

If the juvenile court finds that “proper and adequate further inquiry and due diligence as required . . . have been conducted and there is no reason to know whether the child is an Indian child,” the court may make a finding that ICWA does not apply to the proceedings, “subject to reversal based on sufficiency of the evidence.” (§ 224.2, subd. (i)(2).)

“[W]e review the juvenile court’s ICWA findings under the substantial evidence test, which requires us to determine if reasonable, credible evidence of solid value supports” the court’s ICWA finding. (In re A.M. (2020) 47 Cal.App.5th 303, 314.)

2. Any ICWA error is harmless.

Father contends the juvenile court erred in finding ICWA did not apply because the Department did not contact his extended family members to inquire about possible Indian ancestry.

“At this point in time, the California courts have staked out three different rules for assessing whether a defective initial inquiry is harmless.” (In re Dezi C. (2022) 79 Cal.App.5th 769, 777 (Dezi C.).) We await clarification from the California Supreme Court or the Legislature. In the meantime, we believe a fourth rule recently adopted by our colleagues in Dezi C. is the better approach. In Dezi C., the appellate court stated that “an agency’s failure to conduct a proper initial inquiry into a dependent child’s American Indian heritage is harmless unless the record contains information suggesting a reason to believe that the child may be an ‘Indian child’ within the meaning of ICWA, such that the absence of further inquiry was prejudicial to the juvenile court’s ICWA finding.” (Id. at p. 779.)

Father’s contention that the Department should have contacted all available paternal relatives is correct but unavailing. The record is unclear with respect to which relatives were contacted by the Department. The Department “must inquire as to possible Indian ancestry and act on any information it receives, but it has no duty to conduct an extensive independent investigation for information.” (In re C.Y. (2012) 208 Cal.App.4th 34, 41; In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1413 [“the obligation is only one of inquiry and not an absolute duty to ascertain or refute [Indian] ancestry”]; In re Levi U. (2000) 78 Cal.App.4th 191, 199 [the Department is not required to conduct an extensive independent investigation or to “cast about” for investigative leads].)

Even assuming the Department failed to contact one or more paternal relatives, father offers nothing to demonstrate the error was not harmless. The notices contained the required information regarding the paternal relatives with possible Indian ancestry. (In re K.M. (2009) 172 Cal.App.4th 115, 119 [“‘The notice must include: if known, (1) the Indian child’s name, birthplace, and birth date; (2) the name of the tribe in which the Indian child is enrolled or may be eligible for enrollment; (3) names and addresses of the child’s parents, grandparents, great grandparents, and other identifying information; and (4) a copy of the dependency petition.’ (In re Francisco W. (2006) 139 Cal.App.4th 695, 703.)”].) Because father has not shown, nor can we find, anything in the record to suggest Z.A. might be, or be eligible to be, a member of a tribe other than those that received notices, we conclude any error by the Department was harmless and affirm.

To the extent father challenges the adequacy of the notices the Department mailed to the tribes, it is irrelevant. ICWA notice is required only if after initial and further inquiries there is “reason to know” that an Indian child is involved in the proceeding. (§ 224.2, subd. (f).) There is “reason to know” a child is an Indian child if any one of six statutory criteria is met—e.g., if the court is advised that the child is a member or eligible for membership in an Indian tribe, the child’s or parent’s residence is on a reservation, the child is or has been a ward of a tribal court, or either parent or the child possess an identification card indicating membership or citizenship in an Indian tribe. (Id., subd. (d).) Here, none of these statutory criteria was met, and father has proffered no evidence to demonstrate that additional inquiry would have led to a different conclusion. Thus, ICWA notice was not required. (In re Q.M. (2022) 79 Cal.App.5th 1068, 1084.) Any insufficiencies in the notices sent, therefore, were legally irrelevant. (Ibid.)

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CURREY, J.

We concur:

MANELLA, P.J.

COLLINS, J.

[1] All undesignated statutory references are to the Welfare and Institutions Code.

[2] Because the sole issue on appeal concerns compliance with ICWA and related state statutes and court rules, we limit our recitation of the facts and procedural background to those matters relevant to compliance, except as necessary for context.

[3] Mother is not a party to this appeal.

[4] Our state legislature incorporated ICWA’s requirements into California statutory law in 2006. (In re Abbigail A. (2016) 1 Cal.5th 83, 91.)

[5] This required information includes: all known names of the child, biological parents, grandparents, and great-grandparents, including maiden, married, and former names or aliases, as well as their current and former addresses, birth dates, places of birth and death, tribal enrollment information of other direct lineal ancestors of the child, and any other identifying information. (§ 224.3, subd. (a)(5).)