Filed 4/29/22 In re M.B. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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J.B. (mother) and H.B. (father) appeal from the juvenile court’s orders terminating their parental rights and ordering a permanent plan of adoption for minors M.B., T.B., and Ja.B. (Welf. & Inst. Code, § 366.26.)[1] Mother’s sole contention on appeal is that the Sacramento County Department of Child, Family and Adult Services (Department) and the juvenile court failed to comply with the inquiry and notice requirements of the Indian Child Welfare Act (ICWA) because the Department did not adequately inquire into information that the minors may have Cherokee heritage. (25 U.S.C. § 1901 et seq.; § 224.2.) Father joins in mother’s arguments.

We will conditionally reverse and remand the matter for limited proceedings to ensure ICWA compliance.

BACKGROUND

We limit our recitation of the background to those facts relevant to ICWA inquiry and noticing requirements.

On August 23, 2017, the Department filed a petition pursuant to section 300, subdivision (b)(1) regarding the minors. The petition reported that mother denied having any Indian heritage. Mother filed a “Parental Notification of Indian Status” form (Judicial Council form ICWA-020) in which she claimed she had Indian ancestry, naming the Pee Dee Indian Nation of Upper South Carolina (Pee Dee Indian Nation).[2] The juvenile court found that the children may be Indian children.

On September 14, 2017, a declaration regarding the Department’s ICWA investigation was filed, reporting that the Pee Dee Indian Nation was not a federally recognized tribe. At the September 15, 2017 jurisdiction hearing, mother again reported she was a member of the Pee Dee Indian Nation. The juvenile court found ICWA did not apply because the Pee Dee Indian Nation was not a federally recognized tribe. However, observing that the Pee Dee Indian Nation had applied for federal recognition, the juvenile court agreed to counsel’s suggestion to monitor the issue throughout the case in the event the tribe gained federal recognition.

Mother gave birth to B.B. on September 27, 2018, and another section 300 petition was filed related to the newborn child. Mother’s ICWA-020 form indicated she may have Indian ancestry, listing Cherokee as her tribe and the Pee Dee Indian Nation as her band, and she further indicated the minors may have Cherokee ancestry. At the detention hearing held on October 24, 2019 concerning B.B.’s section 300 petition and the other minors’ section 387 petition, the juvenile court inquired about Indian ancestry and mother reported she had Cherokee ancestry on her father’s side. Counsel for mother stated: “The mother does believe that the children are eligible for Cherokee. One of her family members is the chief.” Mother explained her paternal grandmother was the “chief of our part of the Cherokee tribe . . . the PeeDee Indian Nation of South Carolina.” She provided her grandmother’s contact information.

At the October 28, 2019 continued detention hearing, the juvenile court asked mother’s counsel if mother “believe[d] she may be a member of the Cherokee tribe,” and mother’s counsel responded, “Your honor, to be clear, she is a member of the PeeDee Nation of Upper South Carolina.” The Department’s counsel responded that the tribe was not federally recognized. Mother’s counsel acknowledged that the Pee Dee Indian Nation was seeking federal recognition and stated that her understanding was the Pee Dee Indian Nation was part of the Cherokee tribe. The juvenile court said, “It appears the mother may be a member of a tribe, but the understanding of all parties at this time is that it is not federally recognized, and all parties are prepared to go forward and give the Department an opportunity to check on that status.” All counsel agreed. The juvenile court then said the case was “under the reason to believe standard until the Department is able to ascertain whether that tribe is now currently federally recognized.” The juvenile court made no further ICWA findings on the record.

On November 20, 2019, a jurisdiction/disposition report was filed with the juvenile court. Sacramento County social worker Natalie Young spoke with Chief B. of the Pee Dee Indian Nation (mother’s paternal grandmother) via telephone on November 13, 2019. Chief B. explained mother has been an enrolled member of the Pee Dee Indian Nation for the past 17 years and reported that all children are eligible for enrollment in the tribe. The chief further stated the tribe is not yet federally recognized but was in the process of obtaining federal recognition through the Bureau of Indian Affairs (BIA). On November 13, 2019, Young reviewed the BIA tribal directory, which revealed the Pee Dee Indian Nation was not listed as a federally recognized tribe. According to the report, the Department provided formal notice to the Pee Dee Indian Nation on November 19, 2019, sending the notice by certified mail, return receipt requested.

On January 3, 2020, Melissa Wike, a representative for the Pee Dee Indian Nation, appeared at the jurisdiction/disposition hearing. During the hearing, the Department’s representative noted that the children are eligible for membership in the non-federally recognized tribe, and the tribe was asking to participate in the proceeding. The juvenile court granted the tribe’s request to participate while noting the limitations on the tribe’s participation under section 306.6.

On August 18, 2020, the juvenile court found: “The Department has complied with ICWA notice requirements and the children have been identified as Indian children, however, as the Tribe is not federally recognized at this time, [section 244.6] requirements do not apply.”

On April 29, 2021, the juvenile court held a hearing on mother’s section 388 petition and also held a section 366.26 hearing. The juvenile court denied mother’s section 388 petition and found by clear and convincing evidence that the minors were adoptable. The juvenile court found none of the exceptions to termination of parental rights applied and it terminated mother’s and father’s parental rights.

DISCUSSION

Mother and father contend the termination of their parental rights should be conditionally reversed and the matter remanded with directions to comply with ICWA. They argue the Department failed to fulfill its duty of further inquiry regarding mother’s claim of Cherokee ancestry by failing to contact the maternal grandfather about his ancestry in a Cherokee tribe, mother’s other family members about their Indian ancestry and affiliation with a Cherokee tribe, or the Pee Dee Indian Nation’s tribal representative to determine whether this family had any Cherokee ancestry.

“ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for removal of Indian children from their families, and by permitting tribal participation in dependency proceedings. (See 25 U.S.C. § 1902; In re Levi U. (2000) 78 Cal.App.4th 191, 195-196.) A major purpose of [ICWA] is to protect ‘Indian children who are members of or are eligible for membership in an Indian tribe.’ (25 U.S.C. § 1901(3).)” (In re A.W. (2019) 38 Cal.App.5th 655, 662.) ICWA defines an “ ‘Indian child’ ” as a child 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).) The juvenile court and the Department have an affirmative and continuing duty, beginning at initial contact, to inquire whether a child who is subject to the proceedings is, or may be, an Indian child. (Cal. Rules of Court, rule 5.481(a); § 224.2, subd. (a).)

Section 224.2, subdivision (e) provides that if the juvenile court or social worker has reason to believe that an Indian child is involved in a proceeding, the juvenile court or social worker shall, as soon as practicable, make further inquiry regarding the possible Indian status of the child. Further inquiry includes, but is not limited to: (1) interviewing the parents, Indian custodian, and extended family members to gather the information required in paragraph (5) of subdivision (a) of section 224.3[3]; (2) contacting the BIA and the State Department of Social Services for assistance in identifying the names and contact information of the tribes in which the child may be a member, or eligible for membership in; and (3) contacting the tribe or tribes and any other person that may reasonably be expected to have information regarding the child’s membership, citizenship status, or eligibility. Contact with a tribe must, at a minimum, include telephone, facsimile, or electronic mail contact to each tribe’s designated agent for receipt of notices under ICWA, and sharing information identified by the tribe as necessary for the tribe to make a membership or eligibility determination, as well as information on the current status of the child and the case. (§ 224.2, subd. (e).)

“[S]ection 224.2 creates three distinct duties regarding ICWA in dependency proceedings. First, from the [Department’s] initial contact with a minor and his [or her] family, the statute imposes a duty of inquiry to ask all involved persons whether the child may be an Indian child. (§ 224.2, subds. (a), (b).) Second, if that initial inquiry creates a ‘reason to believe’ the child is an Indian child, then the [Department] ‘shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable.’ (Id., subd. (e), italics added.) Third, if that further inquiry results in a reason to know the child is an Indian child, then the formal notice requirements of section 224.3 apply. (See § 224.2, subd. (c) [court is obligated to inquire at the first appearance whether anyone ‘knows or has reason to know that the child is an Indian child’]; id., subd. (d) [defining circumstances that establish a ‘reason to know’ a child is an Indian child]; § 224.3 [ICWA notice is required if there is a ‘reason to know’ a child is an Indian child as defined under § 224.2, subd. (d)].)” (In re D.S. (2020) 46 Cal.App.5th 1041, 1052.)

Here, mother and father contend the Department failed to seek additional ancestor identifying and tribal affiliation information regarding mother’s claim of Cherokee heritage. The Department responds that mother’s claim of Cherokee heritage was solely related to her belief that the Pee Dee Indian Nation is a subset of Cherokee and because the Pee Dee Indian Nation is not a federally recognized tribe, we should reject her claim of error. We agree with the Department that to the extent mother is claiming Cherokee ancestry solely through the Pee Dee Indian Nation, it is not a federally recognized tribe and her claim fails. However, a fair reading of the record shows that on mother’s ICWA‑020 form, she listed Cherokee as her tribe and the Pee Dee Indian Nation as her band, and she further indicated the minors and one or more of her parents or grandparents may have Cherokee ancestry. The juvenile court sought to clarify mother’s ancestry at the detention hearing, asking mother if she had Cherokee ancestry, and she replied, “[y]es.” Mother stated she had Cherokee ancestry on her father’s side. Mother’s attorney then stated, “The mother does believe that the children are eligible for Cherokee. One of her family members is the chief.”

Thus, while some of mother’s comments indicate that her claim of Cherokee heritage was derived from her membership in the Pee Dee Indian Nation, she also claimed her father was Cherokee and she believed her children were eligible for membership in a Cherokee tribe. Accordingly, it is unclear whether mother was claiming she and the minors were eligible for dual membership in multiple tribes.

The Department confirmed with the BIA tribal directory and the chief of the Pee Dee Indian Nation that the Pee Dee Indian Nation is not listed as a federally recognized tribe. But the Department’s summary of the conversation with the chief does not disclose whether the Department inquired about the minors’ possible Cherokee heritage. Further, there is nothing in the record indicating whether the Department made any effort to contact mother’s other relatives, including her father, to glean information about the minors’ possible Cherokee heritage. Nor does the record disclose that the Department contacted any of the Cherokee tribes or the BIA. No declarations or information was provided to the juvenile court describing who, if anyone, was interviewed in an attempt to obtain such information. If a proper inquiry was made, the Department should have reported those facts to the juvenile court. Section 224.2 does not identify a particular manner by which the Department must inform the juvenile court of its inquiry efforts when there is only “reason to believe” a child may be an Indian child. (In re M.W. (2020) 49 Cal.App.5th 1034, 1046.) The Department may demonstrate its efforts or due diligence via reports, declaration, or testimony. (Ibid.) But here, we have no indication that any effort was made to ascertain whether mother had separate Cherokee heritage from another tribe.

A reasonable construction of the record suggests that the Department failed to perform further inquiry required by section 224.2, subdivision (e). Mother’s living relatives may have some information about tribal affiliation, pertinent birthdates of relatives with potential Native American ancestry, current contact information for additional relatives, or other ancestry information that would have assisted the Department in determining whether it needed to send notice to the Cherokee tribes and the BIA. Thus, the error was not harmless because the Department did not clarify or solicit further information regarding mother’s claims. A failure to conduct a proper ICWA inquiry requires a limited reversal of the orders terminating parental rights and a remand for proper inquiry and any required notice. (In re A.B. (2008) 164 Cal.App.4th 832, 839.) The Department is obligated to make efforts to obtain identifying ancestry information from mother and mother’s relatives or document its attempts for the juvenile court to consider in making its ICWA findings. If additional relevant information is obtainable through these relatives, that information must be provided to the BIA and any identified tribes. Accordingly, we must conditionally reverse and remand the matter for limited proceedings to ensure ICWA compliance.

DISPOSITION

The orders terminating parental rights are conditionally reversed and the matter is remanded to the juvenile court for the limited purpose of further inquiry regarding the minors’ possible Cherokee heritage, with directions to order the Department to make further inquiry in compliance with the provisions of ICWA. If, after proper and complete inquiry, the minors are found not to be Indian children falling within the provisions of the ICWA, the orders terminating parental rights shall be reinstated. If, however, the minors are found to be Indian children as defined by ICWA and the juvenile court determines ICWA applies to this case, the juvenile court is ordered to conduct a new section 366.26 hearing and proceed in accordance with ICWA, including considering any petition filed to invalidate prior orders. (25 U.S.C. § 1914; § 224, subd. (e).)

/S/

MAURO, Acting P. J.

We concur:

/S/

HOCH, J.

/S/

RENNER, J.

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

[2] The record references the tribe as “Pee Dee Indian Nation of Upper South Carolina,” “Pee Dee Indian Nation,” “Pee Dee Nation,” “Pee Dee Nation of South Carolina,” “Pee Dee Indian Nation of South Carolina,” and “Pee Dee Nation of Upper South Carolina.” In this opinion, we will reference the tribe as “Pee Dee Indian Nation” for consistency.

[3] Section 224.3, subdivision (a)(5) includes the name, birth date, and birthplace of the Indian child, if known; the name of the Indian tribe; and the names and other identifying information of the Indian child’s biological parents, grandparents, and great-grandparents, if known.